Borrowing Base Properties. (a) (i) Borrower shall own at least three (3) Borrowing Base Properties at all times, of which no fewer than two (2) must be located in the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by Xxxxx Travel Research (or a similar successor company designated by Administrative Agent). (b) A Property may cease to qualify as a Borrowing Base Property, but may subsequently regain its status as a Borrowing Base Property as provided in clause (c) below. (c) The Properties approved as Borrowing Base Properties as of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with (i) a certification by the Borrower that such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrower. (d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.
Appears in 3 contracts
Samples: Credit Agreement (Strategic Hotels & Resorts, Inc), Credit Agreement (Strategic Hotels & Resorts, Inc), Credit Agreement (Strategic Hotels & Resorts, Inc)
Borrowing Base Properties. (a1) (i) Borrower shall own With respect to any Net Cash Proceeds realized or received with respect to any Insurance and Condemnation Event at least three (3) Borrowing Base Properties at all times, of which no fewer than two (2) must be located in the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by Xxxxx Travel Research (or a similar successor company designated by Administrative Agent).
(b) A Property may cease to qualify as a Borrowing Base Property, the Net Cash Proceeds shall at the request of Administrative Agent, be paid directly to Administrative Agent, and provided that:
(I) if the Net Cash Proceeds are less than $1,000,000 and there is no Event of Default that remains unwaived or uncured, the Administrative Agent shall release such Net Cash Proceeds to the Borrower and/or the applicable Guarantor to be used for repair or restoration of the applicable Borrowing Base Property;
(II) if the Net Cash Proceeds are in an amount from $1,000,000 up to $4,000,000 and there is no Event of Default that remains unwaived or uncured, the Administrative Agent shall permit such Net Cash Proceeds held by the Administrative Agent to be released to the Borrower or the applicable Guarantor to be used for repair or restoration but may subsequently regain its status as a condition such application upon the following conditions: (A) the restoration or repair will return the Borrowing Base Property to substantially the same condition as provided existed prior to the casualty or condemnation, (B) the Net Cash Proceeds available therefrom (plus additional funds as may be required to be deposited by the Borrower with the Administrative Agent) will be sufficient to complete the required repair or restoration, and (C) the restoration or repair is capable of being completed by the date which is sixty (60) days prior to the then current Revolving Termination Date; and
(III) if the Net Cash Proceeds exceed $4,000,000, the Administrative Agent may permit insurance or condemnation proceeds held by the Administrative Agent to be released to the Borrower or the applicable Guarantor to be used for repair or restoration (provided, that if the Administrative Agent has elected not to release such proceeds to the Borrower, then 100% of the Net Cash Proceeds shall be applied as a principal prepayment of the Loans (or shall Cash Collateralize the Letter of Credit Liabilities or Specified Derivatives Obligations, as applicable) in the manner set forth in clause (cviii) below) upon the following conditions: (A) the deposit with the Administrative Agent of such additional funds which the Administrative Agent determines are needed to pay all costs of the repair or restoration (including, without limitation, taxes, financing charges, insurance and rent during the repair period); (B) the establishment of an arrangement for lien releases and disbursement of funds acceptable to the Administrative Agent (the arrangement contained in this Agreement for disbursing Revolving Loan funds shall be deemed reasonable with respect to disbursement of Net Cash Proceeds); (C) the delivery to the Administrative Agent of plans and specifications for the work, a contract for the work signed by a contractor reasonably acceptable to the Administrative Agent and a cost breakdown for the work, all of which shall be reasonably acceptable to the Administrative Agent; (D) the delivery to the Administrative Agent of evidence acceptable to the Administrative Agent in its reasonable determination (aa) that after completion of the work the income from the Borrowing Base Property will be sufficient to pay all expenses of the Borrowing Base Property; (bb) of the continuation of Leases or execution of new Leases for not less than seventy percent (70%) of the net rentable area covered by Leases immediately prior to the casualty; and (cc) that upon completion of the work, the size, capacity and total value of the Borrowing Base Property will be at least as great as it was before the damage or condemnation occurred, and (E) there is no Event of Default that remains unwaived or uncured. The Borrower hereby acknowledges that the conditions described above are reasonable, and, if such conditions have not been satisfied within one hundred fifty (150) days of receipt by the Administrative Agent of such insurance or condemnation proceeds, then Administrative Agent may apply such Net Cash Proceeds in accordance with clause (viii) below.
(c2) The Properties approved as Borrowing Base Properties as of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties following (whether New Acquisitions, former Development Properties now existing or Properties that had been Borrowing Base Properties but ceased to qualify as suchhereafter arising) are all absolutely and irrevocably assigned by sending written proposals for inclusion the Borrower and each Guarantor to the Administrative Agent together with and, at the request of Administrative Agent, shall be paid directly to Administrative Agent: (i) all awards of damages and all other compensation payable directly or indirectly by reason of a certification condemnation or proposed condemnation for public or private use affecting all or any part of, or any interest in, any Borrowing Base Property or Collateral; (ii) all proceeds of any insurance policies (whether or not expressly required by the Administrative Agent to be maintained by the Borrower that such Property then satisfies the criteria for a or any Subsidiary, including, but not limited to, earthquake insurance and terrorism insurance, if any) payable by reason of loss sustained to all or any part of any Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, Collateral; and (iii) an Acceptable Appraisal all interest which may accrue on any of the proposed Borrowing Base Property foregoing. Subject to applicable law, the Administrative Agent may at its reasonable discretion apply all or any of the proceeds it receives to its expenses in settling, prosecuting or defending any claim and shall apply the remainder in accordance with clause (iv1) a Title Search with respect to such proposed Borrowing Base Propertyabove. The Administrative Agent will make such request may commence, appear in, defend or prosecute any assigned claim or action and materials available may adjust, compromise, settle and collect all claims and awards assigned to the Lenders and will endeavor promptly either Administrative Agent; provided, however, in no event shall the Administrative Agent be responsible for any failure to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (collect any claim or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested award unless caused by the Borrower.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify malfeasance or nonfeasance by Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property its employees or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day periodagents.
Appears in 3 contracts
Samples: First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Borrowing Base Properties. To each Borrower’s knowledge and except (i) as disclosed in the Real Property Information delivered to Administrative Agent, and (ii) where the failure of any of the following to be true and correct would not constitute a Material Adverse Effect or result in a Material Property Event with respect to any Borrowing Base Property:
(a) (i) Borrower shall own at least three (3) Borrowing Base Properties at all times, of which no fewer than two (2) must be located in the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Each Borrowing Base Property Owner shall at any time be subject has good record and marketable title in fee simple to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as all Borrowing Base Properties at any timenecessary or used in the ordinary conduct of its business, and (iv) no more than two (2) except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a Material Property Event with respect to such Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Property. Each applicable Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotelsProperty Owner has good record and marketable fee simple title to the Borrowing Base Property owned by such Borrowing Base Property Owner, as designated subject only to Liens permitted by Xxxxx Travel Research (Section 6.01. All of the outstanding Equity Interests in each Borrowing Base Property Owner have been validly issued, are fully paid and nonassessable and are owned by a Borrower or a similar successor company designated Wholly Owned Subsidiary thereof free and clear of all Liens (other than Liens permitted by Administrative AgentSection 6.01).
(b) A Property may cease to qualify as a Borrowing Base Property, but may subsequently regain its status as a Each Borrowing Base Property as provided complies in clause (c) below.
(c) The Properties approved as Borrowing Base Properties as of the Closing Date are set forth all material respects with all Legal Requirements, including all subdivision and platting requirements, without reliance on Schedule II heretoany adjoining or neighboring property. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties No Credit Party has received any written notice or Properties written claim from any Person that had been Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with (i) a certification by the Borrower that such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrower.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or any use, activity, operation, or maintenance thereof or thereon, is not in compliance with any Legal Requirement, and has no knowledge of any such noncompliance except as disclosed to Administrative Agent;
(c) The Credit Parties have not directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so), other than pursuant to Permitted Liens, any development rights, air rights, or other similar rights, privileges, or attributes with respect to a Borrowing Base Property, including those arising under any zoning or property use ordinance or other Legal Requirements;
(d) All utility services necessary for the use of each Borrowing Base Property and the operation thereof for their intended purpose are available at each Borrowing Base Property;
(e) The current use of each Borrowing Base Property complies in all material respects with all applicable zoning ordinances, regulations, and restrictive covenants affecting such Borrowing Base Property, all use restrictions of any Governmental Authority having jurisdiction have been satisfied;
(f) Except as disclosed in writing to the Administrative Agent, the rent rolls delivered to the Administrative Agent with respect thereof are true, correct and complete in all material respects and the Leases referred to thereon are all valid and in full force and effect; (ii) the Leases (including modifications thereto) are in writing, and there are no oral agreements with respect thereto; (iii) the copies of each of the Leases (if any) delivered to the Administrative Agent are true, correct and complete in all material respects and have not been modified (or further modified); (iv) to the knowledge of any Credit Party, no material defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to be a Material Property Event; (v) no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other event Leases that individually or occurrence which would cause in the aggregate could reasonably be expected to be a Material Property Event; (vi) no Credit Party has made any presently effective assignment or pledge of any of the Leases, the rents or any interests therein except to the Administrative Agent; (vii) no tenant or other party has an option or right of first refusal to purchase all or any portion of any Borrowing Base Property; (viii) no tenant has the right to terminate any Lease prior to expiration of the stated term of such Lease (except as a result of counterparty breach, casualty, condemnation or other customary basis of a right to terminate); and (ix) no tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits);
(g) No Borrowing Base Property is the subject of any pending or, to cease to qualify as such. In such eventany Credit Party’s knowledge, the affected threatened condemnation or material adverse zoning proceeding for which Administrative Agent has not been notified in writing; and
(h) Each Borrowing Base Property will immediately, as of complies with the occurrence, cease conditions to qualify be included as a Borrowing Base Property hereunderunder Section 2.23(d)(ii) and, except as previously disclosed to the extent provided Administrative Agent in the following sentence. In the event that structural defectswriting, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in no Exclusion Event with respect to any such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day periodhas occurred.
Appears in 3 contracts
Samples: Credit Agreement (Vinebrook Homes Trust, Inc.), Increase Agreement, Joinder, and Second Amendment to Credit Agreement (Vinebrook Homes Trust, Inc.), Revolving Credit Agreement (Vinebrook Homes Trust, Inc.)
Borrowing Base Properties. (a1) (i) Borrower shall own at least three (3) Borrowing Base Properties at all timesSubject to the first sentence of Section 2.10(b), of which no fewer than two (2) must be located in the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any timeabove, and (iv) no more than two (2) Borrowing Base Properties may include a condominium Section 2.10(b)(x), below, with respect to any Net Cash Proceeds realized or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in received with respect to any such case unless otherwise agreed by the Required Lenders, Insurance and (v) Condemnation Event at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by Xxxxx Travel Research (or a similar successor company designated by Administrative Agent).
(b) A Property may cease to qualify as a Borrowing Base Property, the Net Cash Proceeds shall at the request of Administrative Agent, be paid directly to Administrative Agent, and provided that:
(I) if the Net Cash Proceeds are less than $1,000,000 and there is no Event of Default that remains unwaived or uncured, the Administrative Agent shall release such Net Cash Proceeds to the Borrower and/or the applicable Guarantor to be used for repair or restoration of the applicable Borrowing Base Property;
(II) if the Net Cash Proceeds are in an amount from $1,000,000 up to $4,000,000 and there is no Event of Default that remains unwaived or uncured, the Administrative Agent shall permit such Net Cash Proceeds held by the Administrative Agent to be released to the Borrower or the applicable Guarantor to be used for repair or restoration but may subsequently regain its status as a condition such application upon the following conditions: (A) the restoration or repair will return the Borrowing Base Property to substantially the same condition as provided existed prior to the casualty or condemnation, (B) the Net Cash Proceeds available therefrom (plus additional funds as may be required to be deposited by the Borrower with the Administrative Agent) will be sufficient to complete the required repair or restoration, and (C) the restoration or repair is capable of being completed by the date which is sixty (60) days prior to the then current Term Loan Maturity Date; and
(III) if the Net Cash Proceeds exceed $4,000,000, the Administrative Agent may permit insurance or condemnation proceeds held by the Administrative Agent to be released to the Borrower or the applicable Guarantor to be used for repair or restoration (provided, that if the Administrative Agent has elected not to release such proceeds to the Borrower, then 100% of the Net Cash Proceeds shall be applied as a principal prepayment of the Loans in the manner set forth in clause (cviii) below) upon the following conditions: (A) the deposit with the Administrative Agent of such additional funds which the Administrative Agent determines are needed to pay all costs of the repair or restoration (including, without limitation, taxes, financing charges, insurance and rent during the repair period); (B) the establishment of an arrangement for lien releases and disbursement of funds acceptable to the Administrative Agent (the arrangement contained in this Agreement for disbursing Loan funds shall be deemed reasonable with respect to disbursement of Net Cash Proceeds); (C) the delivery to the Administrative Agent of plans and specifications for the work, a contract for the work signed by a contractor reasonably acceptable to the Administrative Agent and a cost breakdown for the work, all of which shall be reasonably acceptable to the Administrative Agent; (D) the delivery to the Administrative Agent of evidence acceptable to the Administrative Agent in its reasonable determination (aa) that after completion of the work the income from the Borrowing Base Property will be sufficient to pay all expenses of the Borrowing Base Property; (bb) of the continuation of Leases or execution of new Leases for not less than seventy percent (70%) of the net rentable area covered by Leases immediately prior to the casualty; and (cc) that upon completion of the work, the size, capacity and total value of the Borrowing Base Property will be at least as great as it was before the damage or condemnation occurred, and (E) there is no Event of Default that remains unwaived or uncured. The Borrower hereby acknowledges that the conditions described above are reasonable, and, if such conditions have not been satisfied within one hundred fifty (150) days of receipt by the Administrative Agent of such insurance or condemnation proceeds, then Administrative Agent may apply such Net Cash Proceeds in accordance with clause (viii) below.
(c2) The Properties approved as Borrowing Base Properties as of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties following (whether New Acquisitions, former Development Properties now existing or Properties that had been Borrowing Base Properties but ceased to qualify as suchhereafter arising) are all absolutely and irrevocably assigned by sending written proposals for inclusion the Borrower and each Guarantor to the Administrative Agent together with (i) a certification by and, at the Borrower that such Property then satisfies the criteria for a Borrowing Base Property orrequest of Administrative Agent, if a waiver or discretionary approval is required with respect shall be paid directly to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrower.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent ofAgent: (i) all awards of damages and all other compensation payable directly or indirectly by reason of a condemnation or proposed condemnation for public or private use affecting all or any material structural defects part of, or Environmental Occurrence affecting a any interest in, any Borrowing Base Property or Collateral; (ii) the occurrence all proceeds of any casualty event affecting a insurance policies (whether or not expressly required by the Administrative Agent to be maintained by the Borrower or any Subsidiary, including, but not limited to, earthquake insurance and terrorism insurance, if any) payable by reason of loss sustained to all or any part of any Borrowing Base Property, Property or Collateral; and (iii) all interest which may accrue on any other event or occurrence which would cause a Borrowing Base Property of the foregoing. Subject to cease to qualify as such. In such eventapplicable law, the affected Borrowing Base Property will immediately, as Administrative Agent may at its reasonable discretion apply all or any of the occurrenceproceeds it receives to its expenses in settling, cease to qualify as a Borrowing Base Property hereunderprosecuting or defending any claim and shall apply the remainder in accordance with clause (1) above. After the First Lien Termination Date, except the Administrative Agent may commence, appear in, defend or prosecute any assigned claim or action and may adjust, compromise, settle and collect all claims and awards assigned to the extent provided Administrative Agent; provided, however, in no event shall the following sentence. In Administrative Agent be responsible for any failure to collect any claim or award unless caused by the event that structural defects, Environmental Occurrence malfeasance or casualty result in the temporary closure (for repair, restoration nonfeasance by Administrative Agent or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration its employees or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day periodagents.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Borrowing Base Properties. (a) The Eligible Real Estate and Eligible Notes Receivable included in the calculation of the Borrowing Base Value shall at all times satisfy all of the following conditions:
(i) Borrower the Eligible Real Estate shall own at least three be owned 100% in fee simple or leased under a ground lease acceptable to Agent in its reasonable discretion by a Subsidiary Guarantor, and the Eligible Notes Receivable shall be owned 100% by a Subsidiary Guarantor, in each case free and clear of all Liens other than the Liens permitted in §8.2(i) and (3) Borrowing Base Properties at all timesiv), and such Eligible Real Estate and Eligible Notes Receivable shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of which no fewer than two such property (2) must be located including any restrictions contained in the United States of America; any applicable organizational documents);
(ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be none of the Eligible Real Estate or the real estate subject to such Eligible Notes Receivable shall have any material title, survey, environmental, structural or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debtdefects that would give rise to a materially adverse effect as to the value, use of or (B) any Lien other than a Permitted Borrowing Base Lien, ability to sell or refinance such property;
(iii) no more The only asset of such Subsidiary shall be Eligible Real Estate or an Eligible Note Receivable included in the calculation of the Borrowing Base Value;
(iv) such Eligible Real Estate is self-managed by the Subsidiary Guarantor or is managed by an independent third party pursuant to a Management Agreement;
(v) with respect to Eligible Note Receivables, the outstanding principal balance of such Eligible Note Receivable shall not exceed seventy-five percent (75%) of the Appraised Value as most recently determined under this Agreement of the real property subject to such Eligible Note Receivable;
(vi) with respect to each Eligible Note Receivable, the underlying real estate would meet all of the requirements that apply to Eligible Real Estate being included within the calculation of the Borrowing Base Value if such property were owned by, rather than mortgaged to, the applicable Subsidiary Guarantor;
(vii) the term of each lease (without regard to extension options) at such Eligible Real Estate or real estate subject to an Eligible Note Receivable must exceed the then effective Maturity Date by not less than three (3) Properties located outside years; provided that with respect to (A) the lease with Elster Electric relating to the property commonly known as 200 Xxxxx Xxxxxx Xxxx, Xxxxxxx, North Carolina, which lease expires on October 31, 2010, and the lease to Yankee Candle relating to the property commonly known as 70 Xxxxx Xxxxxx, Xxxxx Xxxxxx, Massachusetts, which expires on June 30, 2010, such leases shall not be required to comply with the provisions of the United State of America may qualify as Borrowing Base Properties at any timethis clause (vii) until June 30, 2007, and (ivB) with respect to the lease to Work Flow Management relating to the property commonly known as Hxxxxxxxx, such lease shall not be required to comply with the terms of this clause (vii);
(viii) each Eligible Real Estate or property subject to an Eligible Note Receivable shall be leased to a single tenant which is an Eligible Tenant, and each such tenant under a lease at such Eligible Real Estate or real estate subject to an Eligible Note Receivable must be in compliance with its payment obligations and material compliance with all other obligations under its lease, and not subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation proceeding;
(ix) no Eligible Real Estate or real estate subject to Eligible Notes Receivable which are subject to a lease or leases to any single tenant or any Affiliate thereof shall account for more than twenty percent (20%) of the Borrowing Base Value (for the purposes hereof, tenants shall not be considered Affiliates of each 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);
(x) such Eligible Real Estate or real estate which is subject to an Eligible Note Receivable shall not be vacant (for example, such tenant is no longer conducting business from such property); provided that at any one time not more than two (2) separate parcels of Eligible Real Estate or real estate which is subject to an Eligible Note Receivable included in the calculation of the Borrowing Base Properties Value may include be attributable to such real estate which is vacant provided that (1) the tenants therein are paying rent and not otherwise in default of their obligations under their lease, (2) during the period of such vacancy, such real estate shall be professionally managed by a condominium or timeshare component or otherwise be part of firm pursuant to a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, Management Agreement approved in any such case unless otherwise agreed writing in advance by the Required LendersAgent, and (v) at least three (3) any such vacant property shall be reoccupied by such tenant or leased to a new tenant (such new tenant and its lease to be approved by Agent) within twelve (12) months of the date such property first became vacant); and
(xi) no more than fifteen percent (15%) of the Borrowing Base Properties Value shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by Xxxxx Travel Research (or a similar successor company designated by Administrative Agent)be attributable to Eligible Notes Receivable.
(b) A Property may cease In the event that all or any material portion of any Eligible Real Estate or any real property subject to qualify as a an Eligible Note Receivable included in the calculation of the Borrowing Base PropertyValue shall be damaged in any material respect or taken by condemnation, but may subsequently regain its status as a then such property shall no longer be included in the calculation of the Borrowing Base Property Value 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) Agent shall receive evidence satisfactory to the Agent 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 or real property subject to an Eligible Note Receivable included in the calculation of the Borrowing Base Value, then the Required Lenders may in good faith reduce the Borrowing Base Value attributable thereto based on such damage until such time as provided in clause the Required Lenders receive evidence satisfactory to the Required Lenders that the value of such real estate (cboth at such time and prospectively) belowshall no longer be materially adversely affected by such damage or condemnation.
(c) The Properties approved as Upon any asset ceasing to qualify to be included in the calculation of the Borrowing Base Properties as Value, such asset shall no longer be included in the calculation of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as suchValue unless otherwise approved in writing by the Required Lenders. Within five (5) by sending written proposals for inclusion Business Days after becoming aware of any such disqualification, the Borrower shall deliver to the Administrative Agent a certificate reflecting such disqualification, together with (i) the identity of the disqualified asset, a certification by statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Value attributable to such asset. Simultaneously with the delivery of the items required pursuant above, the Borrower that such Property then satisfies shall deliver to the criteria for a Agent an updated Borrowing Base Property orCertificate demonstrating, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect after giving effect to such proposed Borrowing Base Property. The Administrative Agent will make such request removal or disqualification, compliance with the conditions and materials available to the Lenders covenants contained in §5.4 and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrower§7.18.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Gladstone Commercial Corp)
Borrowing Base Properties. (a1) (i) Borrower shall own at least three (3) Borrowing Base Properties at all timesSubject to the first sentence of Section 2.10(b), of which no fewer than two (2) must be located in the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any timeabove, and (iv) no more than two (2) Borrowing Base Properties may include a condominium Section 2.10(b)(x), below, with respect to any Net Cash Proceeds realized or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in received with respect to any such case unless otherwise agreed by the Required Lenders, Insurance and (v) Condemnation Event at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by Xxxxx Travel Research (or a similar successor company designated by Administrative Agent).
(b) A Property may cease to qualify as a Borrowing Base Property, the Net Cash Proceeds shall at the request of Administrative Agent, be paid directly to Administrative Agent, and provided that:
(I) if the Net Cash Proceeds are less than $1,000,000 and there is no Event of Default that remains unwaived or uncured, the Administrative Agent shall release such Net Cash Proceeds to the Borrower and/or the applicable Guarantor to be used for repair or restoration of the applicable Borrowing Base Property;
(II) if the Net Cash Proceeds are in an amount from $1,000,000 up to $4,000,000 and there is no Event of Default that remains unwaived or uncured, the Administrative Agent shall permit such Net Cash Proceeds held by the Administrative Agent to be released to the Borrower or the applicable Guarantor to be used for repair or restoration but may subsequently regain its status as a condition such application upon the following conditions: (A) the restoration or repair will return the Borrowing Base Property to substantially the same condition as provided existed prior to the casualty or condemnation, (B) the Net Cash Proceeds available therefrom (plus additional funds as may be required to be deposited by the Borrower with the Administrative Agent) will be sufficient to complete the required repair or restoration, and (C) the restoration or repair is capable of being completed by the date which is sixty (60) days prior to the then current Term Loan Maturity Date; and (III) if the Net Cash Proceeds exceed $4,000,000, the Administrative Agent may permit insurance or condemnation proceeds held by the Administrative Agent to be released to the Borrower or the applicable Guarantor to be used for repair or restoration (provided, that if the Administrative Agent has elected not to release such proceeds to the Borrower, then 100% of the Net Cash Proceeds shall be applied as a principal prepayment of the Loans in the manner set forth in clause (cviii) below) upon the following conditions: (A) the deposit with the Administrative Agent of such additional funds which the Administrative Agent determines are needed to pay all costs of the repair or restoration (including, without limitation, taxes, financing charges, insurance and rent during the repair period); (B) the establishment of an arrangement for lien releases and disbursement of funds acceptable to the Administrative Agent (the arrangement contained in this Agreement for disbursing Loan funds shall be deemed reasonable with respect to disbursement of Net Cash Proceeds); (C) the delivery to the Administrative Agent of plans and specifications for the work, a contract for the work signed by a contractor reasonably acceptable to the Administrative Agent and a cost breakdown for the work, all of which shall be reasonably acceptable to the Administrative Agent; (D) the delivery to the Administrative Agent of evidence acceptable to the Administrative Agent in its reasonable determination (aa) that after completion of the work the income from the Borrowing Base Property will be sufficient to pay all expenses of the Borrowing Base Property; (bb) of the continuation of Leases or execution of new Leases for not less than seventy percent (70%) of the net rentable area covered by Leases immediately prior to the casualty; and (cc) that upon completion of the work, the size, capacity and total value of the Borrowing Base Property will be at least as great as it was before the damage or condemnation occurred, and (E) there is no Event of Default that remains unwaived or uncured. The Borrower hereby acknowledges that the conditions described above are reasonable, and, if such conditions have not been satisfied within one hundred fifty (150) days of receipt by the Administrative Agent of such insurance or condemnation proceeds, then Administrative Agent may apply such Net Cash Proceeds in accordance with clause (viii) below.
(c2) The Properties approved as Borrowing Base Properties as of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties following (whether New Acquisitions, former Development Properties now existing or Properties that had been Borrowing Base Properties but ceased to qualify as suchhereafter arising) are all absolutely and irrevocably assigned by sending written proposals for inclusion the Borrower and each Guarantor to the Administrative Agent together with (i) a certification by and, at the Borrower that such Property then satisfies the criteria for a Borrowing Base Property orrequest of Administrative Agent, if a waiver or discretionary approval is required with respect shall be paid directly to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrower.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent ofAgent: (i) all awards of damages and all other compensation payable directly or indirectly by reason of a condemnation or proposed condemnation for public or private use affecting all or any material structural defects part of, or Environmental Occurrence affecting a any interest in, any Borrowing Base Property or Collateral; (ii) the occurrence all proceeds of any casualty event affecting a insurance policies (whether or not expressly required by the Administrative Agent to be maintained by the Borrower or any Subsidiary, including, but not limited to, earthquake insurance and terrorism insurance, if any) payable by reason of loss sustained to all or any part of any Borrowing Base Property, Property or Collateral; and (iii) all interest which may accrue on any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.the
Appears in 1 contract
Samples: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Borrowing Base Properties. (a) Each of the Pledging Subsidiaries, the LLC, and each of the Partnerships has good and indefeasible title to all its Borrowing Base Properties which are Hydrocarbon Interests and good title to all its Borrowing Base Properties which are personal property, free and clear of Liens (other than Permitted Liens). With respect to the Borrowing Base Properties set forth on Schedule 5.1(a), after giving full effect to the Permitted Liens, the net revenue interest is no less than that designated for the Pledging Subsidiaries, the LLC, and the Partnerships in and to such Borrowing Base Properties and the working interest is no greater than as set forth for the Pledging Subsidiaries, the LLC, and the Partnerships in and to such Borrowing Base Properties, and there are no “back-in” or “reversionary” interests held by third parties which could reduce the net revenue interest or increase the working interest of the Pledging Subsidiaries, the LLC, or the Partnerships in such Borrowing Base Properties except as expressly set forth in Schedule 5.1(a). All xxxxx drilled and Hydrocarbons produced with respect to the Borrowing Base Properties were drilled and produced in compliance in all material respects with all applicable Governmental Rules. All of the Borrowing Base Properties described in Schedule 5.1(a), are covered by the Initial Reserve Report and other reports which Borrower has previously delivered to and which have been relied upon by Agent and Lenders in connection with this Agreement and are covered by Mortgages or are owned by (i) Borrower shall own at least three Partnerships in which the Pledging Subsidiaries have granted security interests to Agent pursuant to a Partnership Pledge Agreement or (3ii) by LLC in which A&W has granted a security interest to Agent pursuant to the LLC Pledge Agreement. No bills are past due and do not give rise to a Lien (other than Liens arising in the ordinary course of business for sums which are not yet due and payable under customary agreements or arising by operation of law) and taxes have been paid with respect to the Borrowing Base Properties at all timesother than those which are the subject of a bona fide dispute which is being contested in good faith by the Pledging Subsidiaries, of the LLC, or the Partnerships by appropriate proceedings as to which no fewer than two a reserve is established in an amount that is satisfactory to Agent (2) must be located in and if a Lien secures the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be same or may secure the same, such Lien is subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by Xxxxx Travel Research (or a similar successor company designated by Administrative AgentProtest).
(b) A Property may cease All of the marketing arrangements of the Pledging Subsidiaries, the LLC, and the Partnerships with respect to qualify as a the Borrowing Base PropertyProperties are valid, but may subsequently regain its status enforceable and in full force and effect. As of the date of this Agreement, there do not exist any cumulative imbalances in gas production or receipt of “take or pay” payments except as a Borrowing Base Property disclosed as provided in clause (cto both existence and extent on Schedule 5.26(b) belowattached hereto.
(c) The Properties approved as There has not been any Material Adverse Change in any of the Borrowing Base Properties as since the date of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with (i) a certification by the Borrower that such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrowermost recent Reserve Report.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.
Appears in 1 contract
Borrowing Base Properties. (a) (i) Borrower shall own at least three (3) Each of the Pledging Subsidiaries, and each of the Partnerships has good and indefeasible title to all its Borrowing Base Properties at which are Hydrocarbon Interests and good title to all times, of which no fewer than two (2) must be located in the United States of America; (ii) no its Borrowing Base Property Properties which are personal property, free and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by clear of Liens (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of Liens). With respect to the United State of America may qualify as Borrowing Base Properties at any timeset forth on Schedule 5.1(a), ---------------- after giving full effect to the Permitted Liens, the net revenue interest is no less than that designated for the Pledging Subsidiaries, and (iv) no more than two (2) the Partnerships in and to such Borrowing Base Properties may include a condominium and the working interest is no greater than as set forth for the Pledging Subsidiaries, and the Partnerships in and to such Borrowing Base Properties, and there are no "back-in" or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional "reversionary" interests held by third parties which could reduce the net revenue interest or timeshare componentincrease the working interest of the Pledging Subsidiaries, or the Partnerships in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at except as expressly set forth in Schedule -------- 5.1
(a). All wells drilled and Hydrocarbonx xxoduced with respect to the ------ Borrowing Base Properties were drilled and produced in compliance in all times qualify material respects with all applicable Governmental Rules. All of the Borrowing Base Properties described in Schedule 5.1(a), are covered by the Initial Reserve --------------- Report and other reports which Borrower has previously delivered to and which have been relied upon by Agent and Lenders in connection with this Agreement and are covered by Mortgages or are owned by Partnerships in which the Pledging Subsidiaries have granted security interests to Agent pursuant to a Partnership Pledge Agreement. No bills are past due and do not give rise to a Lien (other than Liens arising in the ordinary course of business for sums which are not yet due and payable under customary agreements or arising by operation of law) and taxes have been paid with respect to the Borrowing Base Properties other than those which are the subject of a bona fide dispute which is being contested in good faith by the Pledging Subsidiaries or the Partnerships by appropriate proceedings as “luxury” to which a reserve is established in an amount that is satisfactory to Agent (and if a Lien secures the same or “upper-upscale” hotelsmay secure the same, as designated by Xxxxx Travel Research (or such Lien is subject to a similar successor company designated by Administrative AgentPermitted Protest).
(b) A Property may cease All of the marketing arrangements of the Pledging Subsidiaries and the Partnerships with respect to qualify as a the Borrowing Base PropertyProperties are valid, but may subsequently regain its status enforceable and in full force and effect. As of the date of this Agreement and thereafter through the Closing Date there do not exist any cumulative imbalances in gas production or receipt of "take or pay" payments except as a Borrowing Base Property disclosed as provided in clause (c) below.to both existence and extent on Schedule 5.26(b)attached hereto. -----------------
(c) The Properties approved as There has not been any Material Adverse Change in any of the Borrowing Base Properties as since the date of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with (i) a certification by the Borrower that such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrowermost recent Reserve Report.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.
Appears in 1 contract
Borrowing Base Properties. (a) At all times, Borrower shall maintain the Borrowing Base Properties in accordance with this Article IX and the other terms and conditions of the Loan Documents.
(b) Borrower shall cause the Borrowing Base Properties to comply with the financial covenants in Section 6.01 at all times. In connection therewith, Borrower shall deliver to Administrative Agent not more than 60 days after each Quarterly Date, a Borrowing Base Certificate evidencing such compliance.
(c) Each Borrowing Base Property shall be subject to the following conditions:
(i) Borrower Such Borrowing Base Property shall own be an income producing, multi-family, retail, distribution, parking or office property, provided that in connection with distribution facilities and parking facilities, such Borrowing Base Property shall be subject to the single-tenant provisions of clause (iv) below and parking facilities shall be permitted only if operated by a third-party operator;
(ii) Such Borrowing Base Property shall have executed leases from tenants in occupancy who are not in default under their lease and not in bankruptcy covering at least three seventy-five percent (375%) of the net rentable square footage of such Borrowing Base Property;
(iii) If such Borrowing Base Property is a distribution facility, it is an Investment Grade Borrowing Base Property having at least eight (8) years remaining on the term of such lease (excluding any extension options) and where the applicable Investment Grade Tenant is in occupancy, not in default under its lease and not in bankruptcy;
(A) The aggregate Borrowing Base Properties at all times, having a single tenant shall not comprise more than (1) thirty percent (30%) of which no fewer than two the Borrowing Base if such Borrowing Base Property is not an Investment Grade Borrowing Base Property or (2) must be located in fifty percent (50%) of the United States of Americaif such Borrowing Base Property is an Investment Grade Borrowing Base Property; or (iiB) no Borrowing Base Property and no Capital Stock in having a single tenant shall be subject to executed leases with a remaining lease term of fewer than six (6) years (excluding any extension options);
(v) The Net Operating Income generated from any single tenant at any Borrowing Base Property Owner shall at any time not account for more than twenty percent (20%) of the Borrowing Base;
(vi) Each Borrowing Base Property must be subject to or encumbered by in the New York Metropolitan Statistical Area;
(vii) Unless Administrative Agent, in its sole and absolute discretion, shall agree otherwise, no single Borrowing Base Property shall compromise more than (A) any Indebtedness other than Permitted 30% of the Borrowing Base Debtat such time as the total Commitments are equal to or less than $40,000,000, or (B) any Lien other than a Permitted 20% of the Borrowing Base Lien, at such time as the total Commitments are less than $100,000,000 but greater than $40,000,000 or (iiiC) no 15% of the Borrowing Base at such time as the total Commitments are equal to or greater than $100,000,000;
(viii) No Borrowing Base Property that is subject to an Approved Ground Lease shall compromise more than three thirty percent (330%) Properties located outside of the United State aggregate Net Operating Income of America may qualify as all Borrowing Base Properties;
(ix) A minimum of thirty percent (30%) of all Borrowing Base Properties at any timemust be located in New York County, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by Xxxxx Travel Research (or a similar successor company designated by Administrative Agent).New York State;
(bx) A Property may cease to qualify as a Borrowing Base Property, but may subsequently regain its status as a An Appraisal shall be required for each Borrowing Base Property as provided in clause (c) below.
(c) The Properties approved as Borrowing Base Properties as during the term of the Closing Date are set forth on Schedule II hereto. Loan, provided that any Appraisal obtained by Borrower may propose to include additional Properties within six (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as such6) by sending written proposals for inclusion months prior to the Administrative Agent together with Effective Date (ior within six (6) a certification by months of the Borrower that such Property then satisfies the criteria for a date any Borrowing Base Property or, if a waiver or discretionary approval is required proposed to be added to the Borrowing Base in accordance with respect the Loan Documents) and that is acceptable to Administrative Agent in its reasonable discretion shall satisfy the requirements of this clause (x); and
(xi) If the Net Operating Income for any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property shall decrease by ten percent (10%) or more from the Net Operating Income determined in connection with the most recently delivered financial information, and within six (iv6) months of such disclosure, Borrower has failed to remedy such failure such that the Net Operating Income is no longer ten percent (10%) or more below such prior determination, then a Title Search with respect to new Appraisal for such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable shall be required to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the be obtained at Borrower’s cost.
(d) Borrower shall promptly after hereby covenants and agrees with respect to any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.follows:
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital New York Recovery Reit Inc)
Borrowing Base Properties. Each Real Property listed on Schedule I fully qualifies as a Borrowing Base Property. With respect to each Borrowing Base Property (including each Real Property which shall be added as a Borrowing Base Property in accordance with the terms hereof, whether upon the Effective Date or pursuant to Article X:
(a) Other than Permitted Encumbrances, there are no claims for payment for work, labor or materials affecting any Borrowing Base Property which are or may become a Lien prior to, or of equal priority with, the Liens created by the Loan Documents.
(b) Each Borrowing Base Property is being, and will continue to be, used exclusively for one or more of the uses permitted pursuant to Section 10.1.2(iii) and in accordance with such Section 10.1.2(iii), and other appurtenant and related uses;
(c) All material certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits, required for the legal use, occupancy and operation of each Borrowing Base Property have been obtained and are in full force and effect. The Borrower shall (or cause the applicable Subsidiary to) keep and maintain all material certifications, permits, licenses and approvals, in full force and effect. The use being made of each Borrowing Base Property is in material conformity with any applicable certificate of occupancy issued for such Borrowing Base Property.
(d) (i) Borrower shall own at least three (3) Borrowing Base Properties at As of the Closing Date, and except as disclosed in any estoppel certificate delivered to the Lender, the rent rolls delivered pursuant to Section 4.1.4 are true, correct and complete in all times, of which no fewer than two (2) must be located material respects and the Leases referred to thereon are all valid and in the United States of Americafull force and effect; (ii) the Leases (including modifications thereto) are in writing, and there are no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, oral agreements with respect thereto; (iii) the copies of each of the Leases (if any) delivered to the Lender are true, correct and complete in all material respects and have not been modified (or further modified); (iv) to the knowledge of any Credit Party, no defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to have a (a) material adverse effect with respect to the financial condition or the operations of such Borrowing Base Property, (b) material adverse effect on the Borrowing Base Asset Value of such Borrowing Base Property, (c) material adverse effect on the ownership of such Borrowing Base Property, or that would involve more than $1,000,000 or take longer than three (3) Properties located outside months to repair or remediate, and, as of the United State Effective Date, to the knowledge of America may qualify as Borrowing Base Properties at any timeCredit Party, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part material default exists under any of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and Leases; (v) at least no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other Leases that individually or in the aggregate could reasonably be expected to have a (a) material adverse effect with respect to the financial condition or the operations of such Borrowing Base Property, (b) material adverse effect on the Borrowing Base Asset Value of such Borrowing Base Property, (c) material adverse effect on the ownership of such Borrowing Base Property, or that would involve more than $1,000,000 or take longer than three (3) months to repair or remediate; (vi) no Credit Party has made any presently effective assignment or pledge of any of the Leases, the rents or any interests therein except to the Lender; (vii) no tenant or other party has an option or right of first refusal to purchase all or any portion of any Borrowing Base Properties shall at all times qualify Property; (viii) no tenant has the right to terminate any Lease prior to expiration of the stated term of such Lease (except as “luxury” a result of counterparty breach, casualty, condemnation or “upperother customary basis of a right to terminate); and (ix) no tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits and estimated payments of operating expenses, Taxes and other pass-upscale” hotels, as designated throughs paid by Xxxxx Travel Research (tenants pursuant to their Leases not prepaid more than one month prior to the date such estimated payments are due or a similar successor company designated by Administrative Agentprepayments of rent made in the ordinary course of business).
(be) A No portion of any Borrowing Base Property may cease is located in a flood hazard area as designated by the Federal Emergency Management Agency or, if in a flood zone, flood insurance (or other flood casualty protection acceptable to qualify as the Lender) is maintained therefor in full compliance with the provisions hereof and all applicable Legal Requirements.
(f) None of the Borrowing Base Properties have been affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that has not previously been repaired or that, either individually or in the aggregate, could reasonably be expected to have a (a) material adverse effect with respect to the financial condition or the operations of such Borrowing Base Property, but may subsequently regain its status as a (b) material adverse effect on the Borrowing Base Property as provided in clause (c) below.
(c) The Properties approved as Borrowing Base Properties as of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with (i) a certification by the Borrower that such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements Asset Value of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrower.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iiic) any other event or occurrence which would cause a material adverse effect on the ownership of such Borrowing Base Property Property, or that would involve more than $1,000,000 or take longer than three (3) months to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentencerepair or remediate. In the event that structural defectsany of the representations or warranties set forth in this Section 3.16 are inaccurate in any material respect with respect to any Borrowing Base Property, Environmental Occurrence or casualty result it shall constitute a Default only in the temporary closure (for repairevent that Borrower, restoration or remediation) of less than 25% of if required by the rooms in Lender, has not removed such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as in accordance with Section 10.3 within ninety (90) days following delivery to the Borrower of written notice of such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day periodbreach.
Appears in 1 contract
Samples: Loan Agreement (GTJ REIT, Inc.)
Borrowing Base Properties. (a) (i) 10.1.1 At all times, the Borrower shall own at least three (3) maintain the Borrowing Base Properties at all times, in accordance with this Article 10 and the other terms and conditions of which no fewer than two (2) must be located the Loan Documents.
10.1.2 In addition to the other requirements that are set forth in the United States definition of America; (ii) no “Borrowing Base Property,” in order for a Real Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by Xxxxx Travel Research (or a similar successor company designated by Administrative Agent).
(b) A Property may cease to qualify as a Borrowing Base Property, but may subsequently regain it shall comply with the following conditions at all times:
(a) Such Borrowing Base Property shall be wholly owned by a Borrower that complies with the covenants and provisions of this Agreement relating to Borrowers; provided, however, that a Borrowing Base Property may, with Lender’s written consent, be leased to a Borrower under an Approved Ground Lease;
(b) The representations and warranties contained in Article 3 with respect to Borrowing Base Properties shall at all times be true and correct with respect to such Borrowing Base Property and such Borrowing Base Property shall be in compliance with the covenants set forth in Section 10.3;
(c) Such Borrowing Base Property shall be an income producing, multi-family, mixed-use, retail, distribution, parking, flex, industrial or office property, provided that parking facilities shall be permitted only if operated by a third-party operator and distribution facilities shall be permitted only to the extent they meet the conditions set forth in clause (e) of this Section 10.1.2;
(d) At least eighty percent (80%) of the (x) units in any multi-family Borrowing Base Property, and (y) net rentable square footage of any other type of Borrowing Base Property (other than a parking facility), shall be subject to executed Leases from tenants in occupancy who are not in default beyond the expiration of all applicable notice and grace periods under their Lease and not in bankruptcy (the “Occupancy Rate”); provided, however, that if (A) on any date, the Occupancy Rate is less than eighty percent (80%), there shall be a grace period of two (2) fiscal quarters to increase such occupancy provided that (i) Borrower delivers written notice of the failure to comply with such occupancy requirement within three (3) Business Days after a Responsible Officer of Borrower obtains knowledge of such failure, and (ii) at all times during such grace period, the Occupancy Rate does not fall below seventy percent (70%) at any time and (B) on any date, the Occupancy Rate is less than seventy percent (70%), there shall be a grace period of two (2) fiscal quarters (which shall be concurrent with and not in addition to the two (2) fiscal quarter grace period referred to in clause (A), above) to increase such occupancy provided that (i) Borrower delivers written notice of the failure to comply with such occupancy requirement within three (3) Business Days after a Responsible Officer of Borrower obtains knowledge of such failure, (ii) at all times during such grace period, the Occupancy Rate does not fall below fifty percent (50%) at any time, and (iii) during the pendency of such grace period, the percentage applicable in calculating the Value-Based Borrowing Base Limit for the applicable Borrowing Base Property shall be reduced by fifty percent (50%); thereafter, and in the event any Borrowing Base Property has an Occupancy Rate below fifty percent (50%) at any time, such Borrowing Base Property shall be removed from the Borrowing Base pursuant to Section 9.03;
(e) If such Borrowing Base Property is a distribution facility, it shall be an Investment Grade Borrowing Base Property having at least eight (8) years remaining on the term of the Lease to the applicable Investment Grade Tenant at the time such facility is added to the Borrowing Base (excluding any extension options) and where the applicable Investment Grade Tenant shall be in occupancy, not in default beyond the expiration of all applicable notice and grace periods under its status Lease and not in bankruptcy;
(f) If such Borrowing Base Property is a Single Tenant Asset, then the remaining Lease term related thereto shall be no less than six (6) years (excluding any extension options);
(g) An Appraisal shall be required for each Borrowing Base Property during the term of this Agreement as follows: (A) within six (6) months prior to the Effective Date (with respect to each initial Borrowing Base Property that is added to the Borrowing Base upon the Effective Date, and (B) within six (6) months prior to the date that any Borrowing Base Property is added to the Borrowing Base in accordance with the Loan Documents (which respect to Borrowing Base Properties added after the Effective Date), and that in each case that is acceptable to Lender in its reasonable discretion, subject to the provisions of Sections 10.1.2(viii) and (ix);
(h) For purposes of determining the Appraised Value of any Borrowing Base Property hereunder, the most recent Appraisal thereof obtained by in accordance with the terms hereof shall govern the determination of the Appraised Value thereof; provided, however that if a new Appraisal is not required to be obtained for such Borrowing Base Property pursuant to Section 10.1.2 until such time as the new Appraisal shall have been obtained in accordance with this Agreement, then the Borrowing Base Asset Value of such Borrowing Base Property shall equal the lesser of the Acquisition Cost of such Borrowing Base Property or the Estimated Value thereof.
(i) The survey for such Borrowing Base Property delivered to the Lender in connection with this Agreement shall be prepared in accordance with the 2011 Minimum Standard Detail Requirements for ALTA/ASM Land Title Surveys. Except for those matters reflected on such survey or in the title policy for such Borrowing Base Property delivered to the Lender in connection with this Agreement or as otherwise disclosed to the Lender, as of the date such Real Property is accepted as a Borrowing Base Property as provided in clause (c) below.
(c) The Properties approved as Property, there shall not be any construction or commencement of construction on such Borrowing Base Properties Property of any new external structures, or additions or extensions thereto, or other external improvements, whether to existing structures or not. Except as of may be disclosed on the Closing Date are set forth on Schedule II hereto. Borrower may propose surveys delivered pursuant to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been this Agreement and in the title policy for such Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with Property: (i) a certification by none of the Borrower that material improvements comprising part of such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of shall be outside the elements boundaries of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable building restriction or setback lines applicable thereto); (ii) no material improvements on adjoining properties shall encroach upon such Borrowing Base Property; and (iii) no material improvements comprising part of such Borrowing Base Property shall encroach upon or violate any easements or any other encumbrance upon such Borrowing Base Property, in each case other than minor encumbrances which could not reasonably be expected to so accepthave a (x) or (B) solicit the consent or waiver of the Required Lenders material adverse effect with respect to any matter so requested by the Borrower.
(d) Borrower shall promptly after any Responsible Officer financial condition or the operations of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a such Borrowing Base Property or Property, (iiy) material adverse effect on the occurrence Borrowing Base Asset Value of any casualty event affecting a such Borrowing Base Property, or (iiiz) material adverse effect on the ownership of such Borrowing Base Property.
(j) All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any other event or occurrence which would cause a Credit Party under applicable legal requirements currently in effect in connection with the transfer of such Borrowing Base Property to cease the Borrower, any transfer of a controlling interest in the Borrower or the formation of the REIT, as applicable, shall have been paid or will be paid prior to qualify as suchdelinquency. In such eventAll mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Credit Party under applicable legal requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the affected Mortgage, shall have been paid prior to delinquency.
(k) The Borrower shall have delivered to Lender copies of all Leases and all unrecorded easement agreements, reciprocal easement agreements, management agreements and material agreements in Borrower’s possession or custody which affect in any material respect the Borrower’s interest in such Borrowing Base Property.
(l) Borrower shall have received no notice of any condemnation proceeding involving such Borrowing Base Property will immediatelyor any portion thereof or parking facility used in connection therewith, as nor shall any portion of such Borrowing Base Property or any parking facility used in connection therewith be damaged due to fire or other casualty, except those proceedings or casualties that could not reasonably be expected to materially interfere with the occurrence, cease current use and value of such Borrowing Base Property or to cause such property to otherwise no longer qualify as a Borrowing Base Property.
(m) Such Borrowing Base Property hereundershall have adequate rights of access to public ways and is currently served by adequate electric, except gas, water, sewer, sanitary sewer and storm drain facilities. All public utilities necessary to the extent provided use and enjoyment of such Borrowing Base Property as intended to be used and enjoyed shall be located in the following sentence. In public right-of-way abutting such Borrowing Base Property or in private easements or license areas benefitting such Borrowing Base Property.
(n) No Credit Party shall have suffered, permitted or initiated the event that structural defects, Environmental Occurrence or casualty result in joint assessment of such Borrowing Base Property with any other real property constituting a tax lot separate and apart from the temporary closure tax lot comprising such Borrowing Base Property.
(for repair, restoration or remediationo) of less than 25% As of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify date of its inclusion as a Borrowing Base Property, such Borrowing Base Property, including all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, shall be in good condition, order and repair in all material respects subject to reasonable and customary wear and tear; and there shall exist no structural or other material defects or damages in such Borrowing Base Property, whether latent or otherwise, and no Credit Party shall have received written notice from any insurance company or bonding company of any defects or inadequacies in such Borrowing Base Property, or any part thereof, which would, in either case, adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.
(p) The Borrower shall have delivered to the Lender a true and correct copy of the Management Agreement that is in effect with respect to such Borrowing Base Property. The Management Agreement with respect to such Borrowing Base Property for so long delivered to the Lender shall be the only Management Agreement related to such Borrowing Base Property, and shall be in full force and effect with no default or event of default, in either case beyond all applicable notice and grace periods, existing thereunder.
(q) To the knowledge of Borrower, no portion of such Borrowing Base Property shall have been purchased with proceeds of any illegal activity and no part of the proceeds of any Credit Extension will be used in connection with any illegal activity.
(r) The Borrowing Base Property must be located in New York, Connecticut, New Jersey, Massachusetts, Rhode Island, Delaware, Maryland, Virginia, Pennsylvania, Vermont, New Hampshire and Maine.
10.1.3 The Borrower hereby covenants and agrees with respect to any Borrowing Base Property as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.follows:
Appears in 1 contract
Samples: Loan Agreement (GTJ REIT, Inc.)
Borrowing Base Properties. (a) Except as disclosed on Schedule 5.6 attached hereto, each of the Borrower and each of the Subsidiary Guarantors have good, marketable, and record title to all of the Oil and Gas Interests described in the Initial Engineering Report other than Immaterial Oil and Gas Interests, free and clear of all Liens except Permitted Liens. With the exception of Immaterial Oil and Gas Interests, all oil, gas, and other mineral leaseholds and fee interests comprising or affecting the Oil and Gas Interests described in the Initial Engineering Report are valid, subsisting, and in full force and effect, and all rentals, royalties, and other amounts due and payable in respect thereof have been duly paid. Except with respect to Immaterial Oil and Gas Interests, but without regard to any consent or non-consent provisions of any joint operating agreement covering any of the Proved Reserves of the Borrower and the Subsidiary Guarantors, the Borrower's and each Subsidiary Guarantor's share of (i) Borrower shall own at least three (3) Borrowing Base Properties at all times, the costs for each of which no fewer the Proved Reserves described in Initial Engineering Report is not greater than two (2) must be located the decimal fraction set forth in the United States of America; Initial Engineering Report, before and after payout, as the case may be, and described therein by the respective designations "working interests", "WI", "gross working interest", "GWI", or similar terms, and (ii) production from, allocated to, or attributed to each such Proved Reserves is not less than the decimal fraction set forth in the Initial Engineering Report, before and after payout, as the case may be, and described therein by the designations "net revenue interest", "NRI", or similar terms. Except with respect to Immaterial Oil and Gas Interests, each well drilled in respect of each Proved Developed Producing Hydrocarbon Reserves described in the Initial Engineering Report (i) is capable of, and is presently, producing Hydrocarbons in commercially profitable quantities, and each of the Borrower and each Subsidiary Guarantor is currently receiving payments for its share of production, with no Borrowing Base Property and no Capital Stock material funds in respect of any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness thereof being presently held in suspense, other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside such funds being held in suspense pending delivery of the United State of America may qualify as Borrowing Base Properties at any timeappropriate division orders, and (ivii) has been drilled, bottomed, completed, and operated in compliance with all applicable Requirements of Law and no such well which is currently producing Hydrocarbons is subject to any penalty in production by reason of such well having produced in excess of its allowable production. For purposes of this Subsection 5.7(a), "Immaterial Oil & Gas Interests" means Oil and Gas Interests which, in the aggregate, do not represent more than two percent (2%) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by Xxxxx Travel Research (or a similar successor company designated by Administrative Agent).
(b) A Property may cease to qualify as a Borrowing Base Property, but may subsequently regain its status as a Borrowing Base Property as provided in clause (c) below.
(c) The Properties approved as Borrowing Base Properties as of the Closing Date are discounted present value of all Oil and Gas Interests as set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion in the most recent Engineering Report delivered to the Administrative Agent together Banks in connection with (i) a certification by the Borrower that such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each determination of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed then effective Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the BorrowerBase.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.
Appears in 1 contract
Borrowing Base Properties. (a) Each of the Pledging Subsidiaries, the LLC, and each of the Partnerships has good and indefeasible title to all its Borrowing Base Properties which are Hydrocarbon Interests and good title to all its Borrowing Base Properties which are personal property, free and clear of Liens (other than Permitted Liens). With respect to the Borrowing Base Properties set forth on SCHEDULE -------- 5.1
(a) after giving full effect to the Permitted Liens, the net revenue ------ interest is no less than that designated for the Pledging Subsidiaries, the LLC, and the Partnerships in and to such Borrowing Base Properties and the working interest is no greater than as set forth for the Pledging Subsidiaries, the LLC, and the Partnerships in and to such Borrowing Base Properties, and there are no "back-in" or "reversionary" interests held by third parties which could reduce the net revenue interest or increase the working interest of the Pledging Subsidiaries, the LLC, or the Partnerships in such Borrowing Base Properties except as expressly set forth in SCHEDULE 5.1(a). All xxxxx drilled and ---------------- Hydrocarbons produced with respect to the Borrowing Base Properties were drilled and produced in compliance in all material respects with all applicable Governmental Rules. All of the Borrowing Base Properties described in SCHEDULE -------- 5.1(a), are covered by the Initial Reserve Report and other reports which ------ Borrower has previously delivered to and which have been relied upon by Agent ------ and Lenders in connection with this Agreement and are covered by Mortgages or are owned by (i) Borrower shall own at least three Partnerships in which the Pledging Subsidiaries have granted security interests to Agent pursuant to a Partnership Pledge Agreement or (3ii) by LLC in which A&W has granted a security interest to Agent pursuant to the LLC Pledge Agreement. No bills are past due and do not give rise to a Lien (other than Liens arising in the ordinary course of business for sums which are not yet due and payable under customary agreements or arising by operation of law) and taxes have been paid with respect to the Borrowing Base Properties at all timesother than those which are the subject of a bona fide dispute which is being contested in good faith by the Pledging Subsidiaries, of the LLC, or the Partnerships by appropriate proceedings as to which no fewer than two a reserve is established in an amount that is satisfactory to Agent (2) must be located in and if a Lien secures the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be same or may secure the same, such Lien is subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by Xxxxx Travel Research (or a similar successor company designated by Administrative AgentProtest).
(b) A Property may cease All of the marketing arrangements of the Pledging Subsidiaries, the LLC, and the Partnerships with respect to qualify as a the Borrowing Base PropertyProperties are valid, but may subsequently regain its status enforceable and in full force and effect. As of the date of this Agreement and thereafter through the Closing Date there do not exist any cumulative imbalances in gas production or receipt of "take or pay" payments except as a Borrowing Base Property disclosed as provided in clause (cto both existence and extent on SCHEDULE 5.26(b) below.attached hereto. -----------------
(c) The Properties approved as There has not been any Material Adverse Change in any of the Borrowing Base Properties as since the date of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with (i) a certification by the Borrower that such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrowermost recent Reserve Report.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and xxxxxxx-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.
Appears in 1 contract
