Operational Covenants. Borrower hereby covenants with Lender as follows: (a) Borrower will not own or lease any property other than the Property (as defined herein and as defined in the Deed of Trust). (b) Except as permitted herein or in the Loan Documents, Borrower will not sell, transfer, lease, convey, assign, pledge, lien or encumber (each, a "Transfer") the Property, in each case in any way without the prior written consent of Lender; nor will it consent to the prohibition by any lender or any other person or entity of any encumbrance on the Property, other than the Loan and Permitted Encumbrances; notwithstanding anything in the Loan Documents to the contrary, Borrower shall be authorized to enter into commercially reasonable leases in the ordinary course of business, as well as any concession agreements, amendments, and modifications related thereto, without the need to obtain the Lender's consent. (c) There shall be no Transfer of any of the Equity Interests (whether legal, beneficial or equitable, whether voluntary or involuntary, whether direct or indirect) in Borrower nor will Borrower consent to any such Transfer, without the prior written consent of Lender, except that the following transfers (the "Permitted Transfers") shall be permitted: (i) a Transfer of the membership interests in BR-TBR Wxxxxxxxx Venture, LLC ("Venture"), the sole member of Borrower (A) by TriBridge Co-Invest 27, LLC (the "TriBridge Member") to BR Wxxxxxxxx Member, LLC (the "BR Member") or (B) by BR Member to TriBridge Member; provided, that any transfer pursuant to clause (B) shall be subject to the prior written approval of Lender in Lender’s sole discretion; (ii) as long as following any such Transfer either Bluerock Real Estate, LLC ("BRRE") or Bluerock Residential Growth REIT, Inc. ("BR REIT") exercise at least the same degree of control, directly or indirectly, over Borrower as exists as of May 20, 2015, any Transfer of direct or indirect ownership interests in TriBridge Member or BR Member; provided, that any transfer of direct or indirect ownership interests in TriBridge Member (other than (A) transfers to BR Member or an Affiliate of BR Member, (B) transfers among any of TBR 2015, LLC, TriBridge Equity Partners II, LLC and TriBridge Investments, LLC), or (C) transfers among any of the existing members of TBR 2015, LLC, TriBridge Equity Partners II, LLC and TriBridge Investments, LLC as of the date hereof) shall be subject to the prior written approval of Lender in Lender's sole discretion; or (iii) a transfer of direct or indirect interests in BR Member in conjunction with a sale of a majority (or all) of the outstanding shares (or partnership interests) of BR REIT or Bluerock Residential Holdings, L.P. (the "BR Operating Partnership"), its operating partnership, or a merger, combination or "roll-up" of BR REIT (or BR Operating Partnership) into a partnership, limited liability company or other entity or participation in an UPREIT, DOWNREIT or similar transaction with a real estate investment trust or other entity (any of the foregoing hereinafter referred to as a "REIT Sale"), where the succeeding entity has a net worth and liquidity no less than that of BR REIT or Bluerock Operating Partnership, as applicable. (d) The funds and other assets of Borrower shall not be commingled with those of any Affiliate or any other Person. (e) Borrower will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Loan, obligations under any Interest Rate Agreements provided by Lender and advances or trade payables incurred in the ordinary course of business of operating the Property. (f) Any contributions to Borrower from its owners, Affiliates, officers, directors, and other related parties shall be in the form of equity and not in the form of debt unless any such debt has been approved in advance in writing by Lender and is fully subordinated to the Loan. (g) Borrower will permit Lender to enter upon the Property at all reasonable times upon advance notice (subject to the rights of tenants) to inspect the Property and Improvements. (h) Borrower will receive and apply the Loan proceeds as set forth in Section 4.2. (i) Borrower will keep adequate records and books of account with respect to the Property, including all finances and accounts pertaining thereto, and make the same available to representatives of Lender at such reasonable times as may be requested by Lender. (j) Other than routine work done in the ordinary course of business pursuant to reasonable business practices and the New Parking Construction, Borrower will not undertake any construction, renovation, alteration or expansion of the Improvements without Lender's prior written approval. (k) Borrower shall provide for the competent and responsible management and operation of the Property; Borrower will not enter into any new property management, construction management, leasing (other than the Leases), brokerage or any other similar agreement affecting the Property without Lender's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, and all such agreements shall, in any event, be subject to the semi-annual review and approval of Lender, which shall not be unreasonably withheld, conditioned, or delayed. Any such agreement which is entered into with an Affiliate of Borrower shall (i) be specifically disclosed to and approved by Lender, (ii) contain a specific waiver by such vendor of any available lien rights otherwise available, and (iii) be subordinate to the Loan Documents. (l) Other than the shares held in Guarantor, none of the Equity Interests shall be dealt with or traded on any securities exchanges or in any public securities markets. (m) Borrower shall maintain all of its checking, depository, operating, cash management and other bank accounts with Lender except that prior to the occurrence of an Event of Default such accounts may be maintained at Wxxxx Fargo Bank, National Association. (n) Borrower shall first apply all income from Leases, and all other income derived from the Property or from any other source, to pay the Property expenses, including all amounts then required to be paid under the Loan Documents, before using or applying such income for any other purpose. If such expenses have been paid and so long as no Event of Default exists or any Default which with the passage of time or the giving of notice or both would become an Event of Default, Borrower may make distributions of any income to any of its members. (o) Borrower shall restore or repair promptly, in a good and workmanlike manner, any damaged part of the Property to the equivalent of its original condition, or such other condition as Lender may approve in writing, whether or not insurance proceeds or condemnation awards are available to cover any cost of such restoration or repair. (p) Borrower shall utilize Lender (i) to place any permanent financing of the Property through Fxxxxx Mae, Fxxxxxx Mac, FHA or a life insurance company, or (ii) to provide any commercial mortgage backed securities loan for the Property. The terms of such permanent financing shall be consistent with then prevailing terms. The placement fee on permanent financing shall be the greater of 50 basis points on such permanent loan amount or the minimum fee permitted by the agency providing such permanent loan. If Borrower does not utilize Lender for the placement or provision of such permanent financing, Borrower shall be required to pay an exit fee equal to $502,950.00 (2% of the Loan Amount), which fee shall be due and payable at the earlier of the Maturity Date (as defined in the Note) or the repayment of the Note (whether voluntarily or after an Event of Default). (q) Subject to Section 6.1(s) below, Borrower will (i) keep and maintain the Property in good working order and condition, ordinary wear and tear excepted, and (ii) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are approved by Lender with Lender named as mortgagee, loss payee and additional insured. Such insurance coverages shall include: (i) An all-risk policy of permanent property insurance insuring the Property against all risks of any kind or character except those permitted by Lender in writing to be excluded from coverage thereunder. (ii) A boiler and machinery insurance policy covering loss or damage to all portions of the Property comprised of air-conditioning and heating systems, other pressure vessels, machinery, boilers or high pressure piping. (iii) An all-risk policy of insurance covering loss of earnings and/or rents from the Property in the event that the Property is not available for use or occupancy due to casualty, damage or destruction required to be covered by the policies of insurance described in (i) and (ii) above. (iv) Commercial general liability, auto liability, umbrella or excess liability and worker's compensation insurance against claims for bodily injury, death or property damage occurring on, in or about the Property in an amount and containing terms acceptable to the Lender. (v) Such other insurance against other insurable hazards, risks or casualties which at the time are commonly insured against in the case of owners and premises similarly situated, due regard being given to the financial condition of Borrower, the height and type of the Property, its construction, location, use and occupancy. (vi) All required insurance will be written on forms acceptable to Lender and by companies having a Best's Insurance Guide Rating of not less than A or A+ and which are otherwise acceptable to the Lender, and such insurance (other than third party liability insurance) shall be written or endorsed so that all losses are payable to the Lender. The original policies evidencing such insurance shall be delivered by Borrower to Lender and held by Lender, unless Lender expressly consents to accept insurance certificates instead. Each such policy shall expressly prohibit cancellation or modification of insurance without thirty (30) days' written notice to Lender. Borrower agrees to furnish (only to the extent available in the event such premiums are paid directly by tenants) due proof of payment of the premiums for all such insurance to Lender promptly after each such payment is made and in any case at least fifteen (15) days before payment becomes delinquent. All insurance premiums shall be paid in advance, and if requested by Lender, it shall be provided with evidence of such prepayment of insurance premium prior to notice of cancellation. In each instance where Lender's approval is required as set forth above, Lender shall use reasonable efforts to give or deny such approval within ten (10) business days of Lender's receipt of written request therefor, and if not given within such ten (10) business day period, shall be deemed disapproved. Lender has approved the insurance as provided in the certificates presented prior to the date hereof. (r) Borrower agrees that Lender may order an updated appraisal for the Property at Borrower's expense at any time upon the occurrence and during the continuance of an Event of Default. (s) Borrower shall inform Lender in writing if it is going to do the New Parking Construction work and provide Lender a description of the work to be done, the budgeted cost, the anticipated start and completion dates, and confirmation that the cost of the work is being paid by Borrower through equity (and not Indebtedness). Lender shall have approval rights with respect to this New Parking Construction, which approval shall not be unreasonably withheld, delayed or conditioned. The New Parking Construction work should not interfere with the normal operation and use of the Property except for certain temporary changes affecting the parking garage during the New Parking Construction. Appropriate construction permits should be obtained, and the New Parking Construction work done in accordance with applicable law. The cost of the New Parking Construction work should be paid by additional capital contributions, not by Indebtedness. Subject to Section 8.1(e) below, the Property should be kept free of mechanic liens or any other liens. Borrower shall keep Lender informed from time to time regarding the progress of the New Parking Construction work and provide a copy of the certificate of occupancy for it when the work has been completed.
Appears in 1 contract
Samples: Loan Agreement (Bluerock Residential Growth REIT, Inc.)
Operational Covenants. Borrower hereby covenants with Lender as followsWithout the prior written consent of Shareholder, PainCare shall not, and shall not permit the Surviving Corporation to, do any of the following prior to the conclusion of the third Formula Period:
(a) Borrower will not own reorganize the Surviving Corporation, whether by integrating or lease any property consolidating the business of the Surviving Corporation with other than the Property (as defined herein and as defined operating units of PainCare or its subsidiaries or affiliates or otherwise, except in the Deed case that at the time of Trust).such integration or consolidation such transaction could not reasonably be expected to have a Material Adverse Effect on the Formula Period Profits;
(b) Except as permitted herein effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the Loan Documents, Borrower will time of such event could not sell, transfer, lease, convey, assign, pledge, lien reasonably be expected to have a Material Adverse Effect on the Formula Period Profits;
(c) amend the articles of incorporation or encumber (each, a "Transfer") bylaws of the Property, in each case Surviving Corporation in any way without manner that at the prior written consent time of Lender; nor will it consent such amendment could reasonably be expected to the prohibition by any lender or any other person or entity of any encumbrance have a Material Adverse Effect on the Property, other than Formula Period Profits;
(d) cause the Loan and Permitted EncumbrancesSurviving Corporation to become a party to or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a Material Adverse Effect on the Formula Period Profits or that is reasonably necessary in light of the Surviving Corporation’s results of operation; notwithstanding anything in provided that this Section 10.9(d) shall not be deemed to create any right to amend or terminate the Loan Documents Management Services Agreement;
(e) cause the Surviving Corporation to the contrary, Borrower shall be authorized to enter into commercially reasonable leases in undertake actions outside the ordinary course of business, as well as any concession agreements, amendments, and modifications related thereto, without its business which at the need time of such undertaking could reasonably be expected to obtain have a Material Adverse Effect on the Lender's consent.
(c) There shall be no Transfer of any of the Equity Interests (whether legal, beneficial or equitable, whether voluntary or involuntary, whether direct or indirect) in Borrower nor will Borrower consent to any such Transfer, without the prior written consent of Lender, except that the following transfers (the "Permitted Transfers") shall be permitted:
(i) a Transfer of the membership interests in BR-TBR Wxxxxxxxx Venture, LLC ("Venture"), the sole member of Borrower (A) by TriBridge Co-Invest 27, LLC (the "TriBridge Member") to BR Wxxxxxxxx Member, LLC (the "BR Member") or (B) by BR Member to TriBridge Member; provided, that any transfer pursuant to clause (B) shall be subject to the prior written approval of Lender in Lender’s sole discretionFormula Period Profits;
(ii) as long as following any such Transfer either Bluerock Real Estate, LLC ("BRRE") or Bluerock Residential Growth REIT, Inc. ("BR REIT") exercise at least the same degree of control, directly or indirectly, over Borrower as exists as of May 20, 2015, any Transfer of direct or indirect ownership interests in TriBridge Member or BR Member; provided, that any transfer of direct or indirect ownership interests in TriBridge Member (other than (A) transfers to BR Member or an Affiliate of BR Member, (B) transfers among any of TBR 2015, LLC, TriBridge Equity Partners II, LLC and TriBridge Investments, LLC), or (C) transfers among any of the existing members of TBR 2015, LLC, TriBridge Equity Partners II, LLC and TriBridge Investments, LLC as of the date hereof) shall be subject to the prior written approval of Lender in Lender's sole discretion; or
(iii) a transfer of direct or indirect interests in BR Member in conjunction with a sale of a majority (or all) of the outstanding shares (or partnership interests) of BR REIT or Bluerock Residential Holdings, L.P. (the "BR Operating Partnership"), its operating partnership, or a merger, combination or "roll-up" of BR REIT (or BR Operating Partnership) into a partnership, limited liability company or other entity or participation in an UPREIT, DOWNREIT or similar transaction with a real estate investment trust or other entity (any of the foregoing hereinafter referred to as a "REIT Sale"), where the succeeding entity has a net worth and liquidity no less than that of BR REIT or Bluerock Operating Partnership, as applicable.
(d) The funds and other assets of Borrower shall not be commingled with those of any Affiliate or any other Person.
(e) Borrower will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Loan, obligations under any Interest Rate Agreements provided by Lender and advances or trade payables incurred in the ordinary course of business of operating the Property.
(f) Any contributions to Borrower from sell a material portion of the Surviving Corporation or its ownersassets, Affiliatesmerge the Surviving Corporation with any other entity, officers, directors, and other related parties shall be sell a controlling interest in the form of equity and not Surviving Corporation, or make any fundamental change in the form of debt unless any such debt has been approved in advance in writing by Lender and is fully subordinated to the Loan.
(g) Borrower will permit Lender to enter upon the Property at all reasonable times upon advance notice (subject to the rights of tenants) to inspect the Property and Improvements.
(h) Borrower will receive and apply the Loan proceeds as set forth in Section 4.2.
(i) Borrower will keep adequate records and books of account with respect to the Property, including all finances and accounts pertaining thereto, and make the same available to representatives of Lender at such reasonable times as may be requested by Lender.
(j) Other than routine work done in the ordinary course of business pursuant to reasonable business practices and the New Parking Construction, Borrower will not undertake any construction, renovation, alteration or expansion of the Improvements without Lender's prior written approval.
(kSurviving Corporation unless such action(s) Borrower shall provide for the competent and responsible management and operation of the Property; Borrower will not enter into any new property management, construction management, leasing (other than the Leases), brokerage or any other similar agreement affecting the Property without Lender's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, and all such agreements shall, in any event, be subject to the semi-annual review and approval of Lender, which shall not be unreasonably withheld, conditioned, or delayed. Any such agreement which is entered into with an Affiliate of Borrower shall (i) be specifically disclosed to and approved by Lender, (ii) contain a specific waiver by such vendor of any available lien rights otherwise available, and (iii) be subordinate to the Loan Documents.
(l) Other than the shares held in Guarantor, none of the Equity Interests shall be dealt with or traded on any securities exchanges or in any public securities markets.
(m) Borrower shall maintain all of its checking, depository, operating, cash management and other bank accounts with Lender except that prior to the occurrence of an Event of Default such accounts may be maintained at Wxxxx Fargo Bank, National Association.
(n) Borrower shall first apply all income from Leases, and all other income derived from the Property or from any other source, to pay the Property expenses, including all amounts then required to be paid under the Loan Documents, before using or applying such income for any other purpose. If such expenses have been paid and so long as no Event of Default exists or any Default which with the passage of time or the giving of notice or both would become an Event of Default, Borrower may make distributions of any income to any of its members.
(o) Borrower shall restore or repair promptly, in a good and workmanlike manner, any damaged part of the Property to the equivalent of its original condition, or such other condition as Lender may approve in writing, whether or not insurance proceeds or condemnation awards are available to cover any cost of such restoration or repair.
(p) Borrower shall utilize Lender (i) to place any permanent financing of the Property through Fxxxxx Mae, Fxxxxxx Mac, FHA or a life insurance company, or (ii) to provide any commercial mortgage backed securities loan for the Property. The terms of such permanent financing shall be consistent with then prevailing terms. The placement fee on permanent financing shall be the greater of 50 basis points on such permanent loan amount or the minimum fee permitted by the agency providing such permanent loan. If Borrower does not utilize Lender for the placement or provision of such permanent financing, Borrower shall be required to pay an exit fee equal to $502,950.00 (2% of the Loan Amount), which fee shall be due and payable at the earlier of the Maturity Date (as defined in the Note) or the repayment of the Note (whether voluntarily or after an Event of Default).
(q) Subject to Section 6.1(s) below, Borrower will (i) keep and maintain the Property in good working order and condition, ordinary wear and tear excepted, and (ii) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are approved by Lender with Lender named as mortgagee, loss payee and additional insured. Such insurance coverages shall include:
(i) An all-risk policy of permanent property insurance insuring the Property against all risks of any kind or character except those permitted by Lender in writing to be excluded from coverage thereunder.
(ii) A boiler and machinery insurance policy covering loss or damage to all portions of the Property comprised of air-conditioning and heating systems, other pressure vessels, machinery, boilers or high pressure piping.
(iii) An all-risk policy of insurance covering loss of earnings and/or rents from the Property in the event that the Property is not available for use or occupancy due to casualty, damage or destruction required to be covered by the policies of insurance described in (i) and (ii) above.
(iv) Commercial general liability, auto liability, umbrella or excess liability and worker's compensation insurance against claims for bodily injury, death or property damage occurring on, in or about the Property in an amount and containing terms acceptable to the Lender.
(v) Such other insurance against other insurable hazards, risks or casualties which at the time of such undertaking could not reasonably be expected to have a Material Adverse Effect on the Formula Period Profits. The Parties hereby acknowledge and agree that the foregoing covenants in this Section 10.9 shall be of no effect during any Formula Period if the Formula Period Profits in any two (2) consecutive Formula Period quarters falling within such Formula Period are commonly insured against in the case of owners and premises similarly situated, due regard being given to the financial condition of Borrower, the height and type of the Property, its construction, location, use and occupancy.
(vi) All required insurance will be written on forms acceptable to Lender and by companies having a Best's Insurance Guide Rating of not less than A Three Hundred Seventy Thousand and No/100 Dollars ($370,000), or A+ and which are otherwise acceptable to if the Lender, and such insurance (other than third party liability insurance) shall be written or endorsed so that all losses are payable to the Lender. The original policies evidencing such insurance shall be delivered by Borrower to Lender and held by Lender, unless Lender expressly consents to accept insurance certificates instead. Each such policy shall expressly prohibit cancellation or modification of insurance without thirty (30) days' written notice to Lender. Borrower agrees to furnish (only to the extent available in the event such premiums are paid directly by tenants) due proof of payment of the premiums for all such insurance to Lender promptly after each such payment is made and Formula Period Profits in any case at least fifteen (15) days before payment becomes delinquent. All insurance premiums shall be paid in advance, and if requested by Lender, it shall be provided with evidence of such prepayment of insurance premium prior to notice of cancellation. In each instance where Lender's approval is required as set forth above, Lender shall use reasonable efforts to give or deny such approval within ten (10) business days of Lender's receipt of written request therefor, and if not given one quarterly period falling within such ten Formula Period is less than One Hundred Sixty Thousand and No/100 Dollars (10) business day period, shall be deemed disapproved. Lender has approved the insurance as provided in the certificates presented prior to the date hereof$160,000).
(r) Borrower agrees that Lender may order an updated appraisal for the Property at Borrower's expense at any time upon the occurrence and during the continuance of an Event of Default.
(s) Borrower shall inform Lender in writing if it is going to do the New Parking Construction work and provide Lender a description of the work to be done, the budgeted cost, the anticipated start and completion dates, and confirmation that the cost of the work is being paid by Borrower through equity (and not Indebtedness). Lender shall have approval rights with respect to this New Parking Construction, which approval shall not be unreasonably withheld, delayed or conditioned. The New Parking Construction work should not interfere with the normal operation and use of the Property except for certain temporary changes affecting the parking garage during the New Parking Construction. Appropriate construction permits should be obtained, and the New Parking Construction work done in accordance with applicable law. The cost of the New Parking Construction work should be paid by additional capital contributions, not by Indebtedness. Subject to Section 8.1(e) below, the Property should be kept free of mechanic liens or any other liens. Borrower shall keep Lender informed from time to time regarding the progress of the New Parking Construction work and provide a copy of the certificate of occupancy for it when the work has been completed.
Appears in 1 contract
Operational Covenants. Borrower hereby covenants with Lender as followsWithout the prior written consent of Shareholder, PainCare shall not, and shall not permit the Surviving Corporation to, do any of the following prior to the conclusion of the third Formula Period:
(a) Borrower will not own reorganize the Surviving Corporation, whether by integrating or lease any property consolidating the business of the Surviving Corporation with other than the Property (as defined herein and as defined operating units of PainCare or its subsidiaries or affiliates or otherwise, except in the Deed case that at the time of Trust).such integration or consolidation such transaction could not reasonably be expected to have a Material Adverse Effect on the Formula Period Profits;
(b) Except as permitted herein effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the Loan Documents, Borrower will time of such event could not sell, transfer, lease, convey, assign, pledge, lien reasonably be expected to have a Material Adverse Effect on the Formula Period Profits;
(c) amend the articles of incorporation or encumber (each, a "Transfer") bylaws of the Property, in each case Surviving Corporation in any way without manner that at the prior written consent time of Lender; nor will it consent such amendment could reasonably be expected to the prohibition by any lender or any other person or entity of any encumbrance have a Material Adverse Effect on the Property, other than Formula Period Profits;
(d) cause the Loan and Permitted EncumbrancesSurviving Corporation to become a party to or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a Material Adverse Effect on the Formula Period Profits or that is reasonably necessary in light of the Surviving Corporation’s results of operation; notwithstanding anything in provided that this Section 10.8(d) shall not be deemed to create any right to amend or terminate the Loan Documents Management Services Agreement;
(e) cause the Surviving Corporation to the contrary, Borrower shall be authorized to enter into commercially reasonable leases in undertake actions outside the ordinary course of business, as well as any concession agreements, amendments, and modifications related thereto, without its business which at the need time of such undertaking could reasonably be expected to obtain have a Material Adverse Effect on the Lender's consent.
(c) There shall be no Transfer of any of the Equity Interests (whether legal, beneficial or equitable, whether voluntary or involuntary, whether direct or indirect) in Borrower nor will Borrower consent to any such Transfer, without the prior written consent of Lender, except that the following transfers (the "Permitted Transfers") shall be permitted:
(i) a Transfer of the membership interests in BR-TBR Wxxxxxxxx Venture, LLC ("Venture"), the sole member of Borrower (A) by TriBridge Co-Invest 27, LLC (the "TriBridge Member") to BR Wxxxxxxxx Member, LLC (the "BR Member") or (B) by BR Member to TriBridge Member; provided, that any transfer pursuant to clause (B) shall be subject to the prior written approval of Lender in Lender’s sole discretionFormula Period Profits;
(ii) as long as following any such Transfer either Bluerock Real Estate, LLC ("BRRE") or Bluerock Residential Growth REIT, Inc. ("BR REIT") exercise at least the same degree of control, directly or indirectly, over Borrower as exists as of May 20, 2015, any Transfer of direct or indirect ownership interests in TriBridge Member or BR Member; provided, that any transfer of direct or indirect ownership interests in TriBridge Member (other than (A) transfers to BR Member or an Affiliate of BR Member, (B) transfers among any of TBR 2015, LLC, TriBridge Equity Partners II, LLC and TriBridge Investments, LLC), or (C) transfers among any of the existing members of TBR 2015, LLC, TriBridge Equity Partners II, LLC and TriBridge Investments, LLC as of the date hereof) shall be subject to the prior written approval of Lender in Lender's sole discretion; or
(iii) a transfer of direct or indirect interests in BR Member in conjunction with a sale of a majority (or all) of the outstanding shares (or partnership interests) of BR REIT or Bluerock Residential Holdings, L.P. (the "BR Operating Partnership"), its operating partnership, or a merger, combination or "roll-up" of BR REIT (or BR Operating Partnership) into a partnership, limited liability company or other entity or participation in an UPREIT, DOWNREIT or similar transaction with a real estate investment trust or other entity (any of the foregoing hereinafter referred to as a "REIT Sale"), where the succeeding entity has a net worth and liquidity no less than that of BR REIT or Bluerock Operating Partnership, as applicable.
(d) The funds and other assets of Borrower shall not be commingled with those of any Affiliate or any other Person.
(e) Borrower will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Loan, obligations under any Interest Rate Agreements provided by Lender and advances or trade payables incurred in the ordinary course of business of operating the Property.
(f) Any contributions to Borrower from sell a material portion of the Surviving Corporation or its ownersassets, Affiliatesmerge the Surviving Corporation with any other entity, officers, directors, and other related parties shall be sell a controlling interest in the form of equity and not Surviving Corporation, or make any fundamental change in the form of debt unless any such debt has been approved in advance in writing by Lender and is fully subordinated to the Loan.
(g) Borrower will permit Lender to enter upon the Property at all reasonable times upon advance notice (subject to the rights of tenants) to inspect the Property and Improvements.
(h) Borrower will receive and apply the Loan proceeds as set forth in Section 4.2.
(i) Borrower will keep adequate records and books of account with respect to the Property, including all finances and accounts pertaining thereto, and make the same available to representatives of Lender at such reasonable times as may be requested by Lender.
(j) Other than routine work done in the ordinary course of business pursuant to reasonable business practices and the New Parking Construction, Borrower will not undertake any construction, renovation, alteration or expansion of the Improvements without Lender's prior written approval.
(kSurviving Corporation unless such action(s) Borrower shall provide for the competent and responsible management and operation of the Property; Borrower will not enter into any new property management, construction management, leasing (other than the Leases), brokerage or any other similar agreement affecting the Property without Lender's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, and all such agreements shall, in any event, be subject to the semi-annual review and approval of Lender, which shall not be unreasonably withheld, conditioned, or delayed. Any such agreement which is entered into with an Affiliate of Borrower shall (i) be specifically disclosed to and approved by Lender, (ii) contain a specific waiver by such vendor of any available lien rights otherwise available, and (iii) be subordinate to the Loan Documents.
(l) Other than the shares held in Guarantor, none of the Equity Interests shall be dealt with or traded on any securities exchanges or in any public securities markets.
(m) Borrower shall maintain all of its checking, depository, operating, cash management and other bank accounts with Lender except that prior to the occurrence of an Event of Default such accounts may be maintained at Wxxxx Fargo Bank, National Association.
(n) Borrower shall first apply all income from Leases, and all other income derived from the Property or from any other source, to pay the Property expenses, including all amounts then required to be paid under the Loan Documents, before using or applying such income for any other purpose. If such expenses have been paid and so long as no Event of Default exists or any Default which with the passage of time or the giving of notice or both would become an Event of Default, Borrower may make distributions of any income to any of its members.
(o) Borrower shall restore or repair promptly, in a good and workmanlike manner, any damaged part of the Property to the equivalent of its original condition, or such other condition as Lender may approve in writing, whether or not insurance proceeds or condemnation awards are available to cover any cost of such restoration or repair.
(p) Borrower shall utilize Lender (i) to place any permanent financing of the Property through Fxxxxx Mae, Fxxxxxx Mac, FHA or a life insurance company, or (ii) to provide any commercial mortgage backed securities loan for the Property. The terms of such permanent financing shall be consistent with then prevailing terms. The placement fee on permanent financing shall be the greater of 50 basis points on such permanent loan amount or the minimum fee permitted by the agency providing such permanent loan. If Borrower does not utilize Lender for the placement or provision of such permanent financing, Borrower shall be required to pay an exit fee equal to $502,950.00 (2% of the Loan Amount), which fee shall be due and payable at the earlier of the Maturity Date (as defined in the Note) or the repayment of the Note (whether voluntarily or after an Event of Default).
(q) Subject to Section 6.1(s) below, Borrower will (i) keep and maintain the Property in good working order and condition, ordinary wear and tear excepted, and (ii) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are approved by Lender with Lender named as mortgagee, loss payee and additional insured. Such insurance coverages shall include:
(i) An all-risk policy of permanent property insurance insuring the Property against all risks of any kind or character except those permitted by Lender in writing to be excluded from coverage thereunder.
(ii) A boiler and machinery insurance policy covering loss or damage to all portions of the Property comprised of air-conditioning and heating systems, other pressure vessels, machinery, boilers or high pressure piping.
(iii) An all-risk policy of insurance covering loss of earnings and/or rents from the Property in the event that the Property is not available for use or occupancy due to casualty, damage or destruction required to be covered by the policies of insurance described in (i) and (ii) above.
(iv) Commercial general liability, auto liability, umbrella or excess liability and worker's compensation insurance against claims for bodily injury, death or property damage occurring on, in or about the Property in an amount and containing terms acceptable to the Lender.
(v) Such other insurance against other insurable hazards, risks or casualties which at the time of such undertaking could not reasonably be expected to have a Material Adverse Effect on the Formula Period Profits. The Parties hereby acknowledge and agree that the foregoing covenants in this Section 10.8 shall be of no effect during any Formula Period if the Formula Period Profits in any two (2) consecutive Formula Period quarters falling within such Formula Period are commonly insured against in the case of owners and premises similarly situated, due regard being given to the financial condition of Borrower, the height and type of the Property, its construction, location, use and occupancy.
(vi) All required insurance will be written on forms acceptable to Lender and by companies having a Best's Insurance Guide Rating of not less than A One Hundred Eighty Five Thousand and No/100 Dollars ($185,000), or A+ and which are otherwise acceptable to if the Lender, and such insurance (other than third party liability insurance) shall be written or endorsed so that all losses are payable to the Lender. The original policies evidencing such insurance shall be delivered by Borrower to Lender and held by Lender, unless Lender expressly consents to accept insurance certificates instead. Each such policy shall expressly prohibit cancellation or modification of insurance without thirty (30) days' written notice to Lender. Borrower agrees to furnish (only to the extent available in the event such premiums are paid directly by tenants) due proof of payment of the premiums for all such insurance to Lender promptly after each such payment is made and Formula Period Profits in any case at least fifteen (15) days before payment becomes delinquent. All insurance premiums shall be paid in advance, and if requested by Lender, it shall be provided with evidence of such prepayment of insurance premium prior to notice of cancellation. In each instance where Lender's approval is required as set forth above, Lender shall use reasonable efforts to give or deny such approval within ten (10) business days of Lender's receipt of written request therefor, and if not given one quarterly period falling within such ten Formula Period is less than Eighty Thousand and No/100 Dollars (10) business day period, shall be deemed disapproved. Lender has approved the insurance as provided in the certificates presented prior to the date hereof$80,000).
(r) Borrower agrees that Lender may order an updated appraisal for the Property at Borrower's expense at any time upon the occurrence and during the continuance of an Event of Default.
(s) Borrower shall inform Lender in writing if it is going to do the New Parking Construction work and provide Lender a description of the work to be done, the budgeted cost, the anticipated start and completion dates, and confirmation that the cost of the work is being paid by Borrower through equity (and not Indebtedness). Lender shall have approval rights with respect to this New Parking Construction, which approval shall not be unreasonably withheld, delayed or conditioned. The New Parking Construction work should not interfere with the normal operation and use of the Property except for certain temporary changes affecting the parking garage during the New Parking Construction. Appropriate construction permits should be obtained, and the New Parking Construction work done in accordance with applicable law. The cost of the New Parking Construction work should be paid by additional capital contributions, not by Indebtedness. Subject to Section 8.1(e) below, the Property should be kept free of mechanic liens or any other liens. Borrower shall keep Lender informed from time to time regarding the progress of the New Parking Construction work and provide a copy of the certificate of occupancy for it when the work has been completed.
Appears in 1 contract
Operational Covenants. Borrower hereby covenants with Lender as followsWithout the prior written consent of Shareholder, PainCare shall not, and shall not permit the Surviving Corporation to, do any of the following prior to the conclusion of the third Formula Period:
(a) Borrower will not own reorganize the Surviving Corporation, whether by integrating or lease any property consolidating the business of the Surviving Corporation with other than the Property (as defined herein and as defined operating units of PainCare or its subsidiaries or affiliates or otherwise, except in the Deed case that at the time of Trust).such integration or consolidation such transaction could not reasonably be expected to have a Material Adverse Effect on the Formula Period Profits;
(b) Except as permitted herein effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the Loan Documents, Borrower will time of such event could not sell, transfer, lease, convey, assign, pledge, lien reasonably be expected to have a Material Adverse Effect on the Formula Period Profits;
(c) amend the articles of incorporation or encumber (each, a "Transfer") bylaws of the Property, in each case Surviving Corporation in any way without manner that at the prior written consent time of Lender; nor will it consent such amendment could reasonably be expected to the prohibition by any lender or any other person or entity of any encumbrance have a Material Adverse Effect on the Property, other than Formula Period Profits;
(d) cause the Loan and Permitted EncumbrancesSurviving Corporation to become a party to or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a Material Adverse Effect on the Formula Period Profits or that is reasonably necessary in light of the Surviving Corporation’s results of operation; notwithstanding anything in provided that this Section 10.9(d) shall not be deemed to create any right to amend or terminate the Loan Documents Management Services Agreement;
(e) cause the Surviving Corporation to the contrary, Borrower shall be authorized to enter into commercially reasonable leases in undertake actions outside the ordinary course of business, as well as any concession agreements, amendments, and modifications related thereto, without its business which at the need time of such undertaking could reasonably be expected to obtain have a Material Adverse Effect on the Lender's consent.
(c) There shall be no Transfer of any of the Equity Interests (whether legal, beneficial or equitable, whether voluntary or involuntary, whether direct or indirect) in Borrower nor will Borrower consent to any such Transfer, without the prior written consent of Lender, except that the following transfers (the "Permitted Transfers") shall be permitted:
(i) a Transfer of the membership interests in BR-TBR Wxxxxxxxx Venture, LLC ("Venture"), the sole member of Borrower (A) by TriBridge Co-Invest 27, LLC (the "TriBridge Member") to BR Wxxxxxxxx Member, LLC (the "BR Member") or (B) by BR Member to TriBridge Member; provided, that any transfer pursuant to clause (B) shall be subject to the prior written approval of Lender in Lender’s sole discretionFormula Period Profits;
(ii) as long as following any such Transfer either Bluerock Real Estate, LLC ("BRRE") or Bluerock Residential Growth REIT, Inc. ("BR REIT") exercise at least the same degree of control, directly or indirectly, over Borrower as exists as of May 20, 2015, any Transfer of direct or indirect ownership interests in TriBridge Member or BR Member; provided, that any transfer of direct or indirect ownership interests in TriBridge Member (other than (A) transfers to BR Member or an Affiliate of BR Member, (B) transfers among any of TBR 2015, LLC, TriBridge Equity Partners II, LLC and TriBridge Investments, LLC), or (C) transfers among any of the existing members of TBR 2015, LLC, TriBridge Equity Partners II, LLC and TriBridge Investments, LLC as of the date hereof) shall be subject to the prior written approval of Lender in Lender's sole discretion; or
(iii) a transfer of direct or indirect interests in BR Member in conjunction with a sale of a majority (or all) of the outstanding shares (or partnership interests) of BR REIT or Bluerock Residential Holdings, L.P. (the "BR Operating Partnership"), its operating partnership, or a merger, combination or "roll-up" of BR REIT (or BR Operating Partnership) into a partnership, limited liability company or other entity or participation in an UPREIT, DOWNREIT or similar transaction with a real estate investment trust or other entity (any of the foregoing hereinafter referred to as a "REIT Sale"), where the succeeding entity has a net worth and liquidity no less than that of BR REIT or Bluerock Operating Partnership, as applicable.
(d) The funds and other assets of Borrower shall not be commingled with those of any Affiliate or any other Person.
(e) Borrower will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Loan, obligations under any Interest Rate Agreements provided by Lender and advances or trade payables incurred in the ordinary course of business of operating the Property.
(f) Any contributions to Borrower from sell a material portion of the Surviving Corporation or its ownersassets, Affiliatesmerge the Surviving Corporation with any other entity, officers, directors, and other related parties shall be sell a controlling interest in the form of equity and not Surviving Corporation, or make any fundamental change in the form of debt unless any such debt has been approved in advance in writing by Lender and is fully subordinated to the Loan.
(g) Borrower will permit Lender to enter upon the Property at all reasonable times upon advance notice (subject to the rights of tenants) to inspect the Property and Improvements.
(h) Borrower will receive and apply the Loan proceeds as set forth in Section 4.2.
(i) Borrower will keep adequate records and books of account with respect to the Property, including all finances and accounts pertaining thereto, and make the same available to representatives of Lender at such reasonable times as may be requested by Lender.
(j) Other than routine work done in the ordinary course of business pursuant to reasonable business practices and the New Parking Construction, Borrower will not undertake any construction, renovation, alteration or expansion of the Improvements without Lender's prior written approval.
(kSurviving Corporation unless such action(s) Borrower shall provide for the competent and responsible management and operation of the Property; Borrower will not enter into any new property management, construction management, leasing (other than the Leases), brokerage or any other similar agreement affecting the Property without Lender's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, and all such agreements shall, in any event, be subject to the semi-annual review and approval of Lender, which shall not be unreasonably withheld, conditioned, or delayed. Any such agreement which is entered into with an Affiliate of Borrower shall (i) be specifically disclosed to and approved by Lender, (ii) contain a specific waiver by such vendor of any available lien rights otherwise available, and (iii) be subordinate to the Loan Documents.
(l) Other than the shares held in Guarantor, none of the Equity Interests shall be dealt with or traded on any securities exchanges or in any public securities markets.
(m) Borrower shall maintain all of its checking, depository, operating, cash management and other bank accounts with Lender except that prior to the occurrence of an Event of Default such accounts may be maintained at Wxxxx Fargo Bank, National Association.
(n) Borrower shall first apply all income from Leases, and all other income derived from the Property or from any other source, to pay the Property expenses, including all amounts then required to be paid under the Loan Documents, before using or applying such income for any other purpose. If such expenses have been paid and so long as no Event of Default exists or any Default which with the passage of time or the giving of notice or both would become an Event of Default, Borrower may make distributions of any income to any of its members.
(o) Borrower shall restore or repair promptly, in a good and workmanlike manner, any damaged part of the Property to the equivalent of its original condition, or such other condition as Lender may approve in writing, whether or not insurance proceeds or condemnation awards are available to cover any cost of such restoration or repair.
(p) Borrower shall utilize Lender (i) to place any permanent financing of the Property through Fxxxxx Mae, Fxxxxxx Mac, FHA or a life insurance company, or (ii) to provide any commercial mortgage backed securities loan for the Property. The terms of such permanent financing shall be consistent with then prevailing terms. The placement fee on permanent financing shall be the greater of 50 basis points on such permanent loan amount or the minimum fee permitted by the agency providing such permanent loan. If Borrower does not utilize Lender for the placement or provision of such permanent financing, Borrower shall be required to pay an exit fee equal to $502,950.00 (2% of the Loan Amount), which fee shall be due and payable at the earlier of the Maturity Date (as defined in the Note) or the repayment of the Note (whether voluntarily or after an Event of Default).
(q) Subject to Section 6.1(s) below, Borrower will (i) keep and maintain the Property in good working order and condition, ordinary wear and tear excepted, and (ii) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are approved by Lender with Lender named as mortgagee, loss payee and additional insured. Such insurance coverages shall include:
(i) An all-risk policy of permanent property insurance insuring the Property against all risks of any kind or character except those permitted by Lender in writing to be excluded from coverage thereunder.
(ii) A boiler and machinery insurance policy covering loss or damage to all portions of the Property comprised of air-conditioning and heating systems, other pressure vessels, machinery, boilers or high pressure piping.
(iii) An all-risk policy of insurance covering loss of earnings and/or rents from the Property in the event that the Property is not available for use or occupancy due to casualty, damage or destruction required to be covered by the policies of insurance described in (i) and (ii) above.
(iv) Commercial general liability, auto liability, umbrella or excess liability and worker's compensation insurance against claims for bodily injury, death or property damage occurring on, in or about the Property in an amount and containing terms acceptable to the Lender.
(v) Such other insurance against other insurable hazards, risks or casualties which at the time of such undertaking could not reasonably be expected to have a Material Adverse Effect on the Formula Period Profits. The Parties hereby acknowledge and agree that the foregoing covenants in this Section 10.9 shall be of no effect during any Formula Period if the Formula Period Profits in any two (2) consecutive Formula Period quarters falling within such Formula Period are commonly insured against less than $250,000 in the case of owners and premises similarly situatedaggregate, due regard being given to or if the financial condition of Borrower, the height and type of the Property, its construction, location, use and occupancy.
(vi) All required insurance will be written on forms acceptable to Lender and by companies having a Best's Insurance Guide Rating of not Formula Period Profits in any one quarterly period falling within such Formula Period is less than A or A+ and which are otherwise acceptable to the Lender, and such insurance (other than third party liability insurance) shall be written or endorsed so that all losses are payable to the Lender. The original policies evidencing such insurance shall be delivered by Borrower to Lender and held by Lender, unless Lender expressly consents to accept insurance certificates instead. Each such policy shall expressly prohibit cancellation or modification of insurance without thirty (30) days' written notice to Lender. Borrower agrees to furnish (only to the extent available in the event such premiums are paid directly by tenants) due proof of payment of the premiums for all such insurance to Lender promptly after each such payment is made and in any case at least fifteen (15) days before payment becomes delinquent. All insurance premiums shall be paid in advance, and if requested by Lender, it shall be provided with evidence of such prepayment of insurance premium prior to notice of cancellation. In each instance where Lender's approval is required as set forth above, Lender shall use reasonable efforts to give or deny such approval within ten (10) business days of Lender's receipt of written request therefor, and if not given within such ten (10) business day period, shall be deemed disapproved. Lender has approved the insurance as provided in the certificates presented prior to the date hereof$75,000.
(r) Borrower agrees that Lender may order an updated appraisal for the Property at Borrower's expense at any time upon the occurrence and during the continuance of an Event of Default.
(s) Borrower shall inform Lender in writing if it is going to do the New Parking Construction work and provide Lender a description of the work to be done, the budgeted cost, the anticipated start and completion dates, and confirmation that the cost of the work is being paid by Borrower through equity (and not Indebtedness). Lender shall have approval rights with respect to this New Parking Construction, which approval shall not be unreasonably withheld, delayed or conditioned. The New Parking Construction work should not interfere with the normal operation and use of the Property except for certain temporary changes affecting the parking garage during the New Parking Construction. Appropriate construction permits should be obtained, and the New Parking Construction work done in accordance with applicable law. The cost of the New Parking Construction work should be paid by additional capital contributions, not by Indebtedness. Subject to Section 8.1(e) below, the Property should be kept free of mechanic liens or any other liens. Borrower shall keep Lender informed from time to time regarding the progress of the New Parking Construction work and provide a copy of the certificate of occupancy for it when the work has been completed.
Appears in 1 contract
Operational Covenants. Borrower hereby covenants with Lender as follows:
(a) Borrower Between the date hereof and the Closing, Seller agrees hereby that it will not own or lease any property other than maintain, operate, rent and manage the Property (in its customary manner as defined herein and of the date of this Contract. Until the Closing Date, Seller shall maintain insurance on the Premises as defined in the Deed of Trust)currently insured.
(b) Except as permitted herein Seller shall not remove any material item of the Personal Property from the Premises unless the same is obsolete and is replaced by tangible personal property of equal or in the Loan Documents, Borrower will greater utility and value.
(c) Seller shall not sell, transfer, lease, convey, assign, pledge, lien or encumber (each, a "Transfer") the Property, in each case in any way without the prior written consent of Lender; nor will it consent to the prohibition by any lender or any other person or entity of any encumbrance on the Property, other than the Loan and Permitted Encumbrances; notwithstanding anything in the Loan Documents to the contrary, Borrower shall be authorized to enter into commercially reasonable leases in the ordinary course of business, as well as any concession agreements, amendments, and modifications related thereto, without the need to obtain the Lender's consent.
(c) There shall be no Transfer of any of the Equity Interests (whether legal, beneficial or equitable, whether voluntary or involuntary, whether direct or indirect) in Borrower nor will Borrower consent to any such Transfer, without the prior written consent of Lender, except that the following transfers (the "Permitted Transfers") shall be permitted:
(i) a Transfer of the membership interests in BR-TBR Wxxxxxxxx Venture, LLC ("Venture"), the sole member of Borrower (A) by TriBridge Co-Invest 27, LLC (the "TriBridge Member") to BR Wxxxxxxxx Member, LLC (the "BR Member") or (B) by BR Member to TriBridge Member; provided, that any transfer pursuant to clause (B) shall be subject to the prior written approval of Lender in Lender’s sole discretion;
(ii) as long as following any such Transfer either Bluerock Real Estate, LLC ("BRRE") or Bluerock Residential Growth REIT, Inc. ("BR REIT") exercise at least the same degree of control, directly or indirectly, over Borrower as exists as of May 20, 2015, any Transfer of direct or indirect ownership interests in TriBridge Member or BR Member; provided, that any transfer of direct or indirect ownership interests in TriBridge Member (other than (A) transfers to BR Member or an Affiliate of BR Member, (B) transfers among any of TBR 2015, LLC, TriBridge Equity Partners II, LLC and TriBridge Investments, LLC), or (C) transfers among any of the existing members of TBR 2015, LLC, TriBridge Equity Partners II, LLC and TriBridge Investments, LLC as of the date hereof) shall be subject to the prior written approval of Lender in Lender's sole discretion; or
(iii) a transfer of direct or indirect interests in BR Member in conjunction with a sale of a majority (or all) of the outstanding shares (or partnership interests) of BR REIT or Bluerock Residential Holdings, L.P. (the "BR Operating Partnership"), its operating partnership, or a merger, combination or "roll-up" of BR REIT (or BR Operating Partnership) into a partnership, limited liability company or other entity or participation in an UPREIT, DOWNREIT or similar transaction with a real estate investment trust or other entity (any of the foregoing hereinafter referred to as a "REIT Sale"), where the succeeding entity has a net worth and liquidity no less than that of BR REIT or Bluerock Operating Partnership, as applicable.
(d) The funds and other assets of Borrower shall not be commingled with those of any Affiliate or any other Person.
(e) Borrower will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Loan, obligations under any Interest Rate Agreements provided by Lender and advances or trade payables incurred in the ordinary course of business of operating the Property.
(f) Any contributions to Borrower from its owners, Affiliates, officers, directors, and other related parties shall be in the form of equity and not in the form of debt unless any such debt has been approved in advance in writing by Lender and is fully subordinated to the Loan.
(g) Borrower will permit Lender to enter upon the Property at all reasonable times upon advance notice (subject to the rights of tenants) to inspect the Property and Improvements.
(h) Borrower will receive and apply the Loan proceeds as set forth in Section 4.2.
(i) Borrower will keep adequate records and books of account with respect to the Property, including all finances and accounts pertaining thereto, and make the same available to representatives of Lender at such reasonable times as may be requested by Lender.
(j) Other than routine work done in the ordinary course of business pursuant to reasonable business practices and the New Parking Construction, Borrower will not undertake any construction, renovation, alteration or expansion of the Improvements without Lender's prior written approval.
(k) Borrower shall provide for the competent and responsible management and operation of the Property; Borrower will not enter into any new property management, construction management, leasing (other than the Leases), brokerage or any other similar agreement affecting the Property without Lender's prior written consentBuyer, which consent shall not be unreasonably withheld, conditioned or delayed, and all such agreements shall, in enter into any event, be subject to the semi-annual review and approval of Lender, which shall not be unreasonably withheld, conditioned, or delayed. Any such agreement which is contract (but excluding new leases entered into with an Affiliate in the ordinary course of Borrower shall (ibusiness) be specifically disclosed to and approved by Lender, (ii) contain a specific waiver by such vendor of any available lien rights otherwise available, and (iii) be subordinate to which could bind Buyer or the Loan Documents.
(l) Other than Property after the shares held in Guarantor, none of Closing unless the Equity Interests shall be dealt with or traded on any securities exchanges or in any public securities markets.
(m) Borrower shall maintain all of its checking, depository, operating, cash management and other bank accounts with Lender except that prior to the occurrence of an Event of Default such accounts same may be maintained at Wxxxx Fargo Bank, National Association.
(n) Borrower shall first apply all income from Leases, and all other income derived from the Property or from any other source, to pay the Property expenses, including all amounts then required to be paid under the Loan Documents, before using or applying such income for any other purpose. If such expenses have been paid and so long as no Event of Default exists or any Default which with the passage of time or the giving of notice or both would become an Event of Default, Borrower may make distributions of any income to any of its members.
(o) Borrower shall restore or repair promptly, in a good and workmanlike manner, any damaged part of the Property to the equivalent of its original condition, or such other condition as Lender may approve in writing, whether or not insurance proceeds or condemnation awards are available to cover any cost of such restoration or repair.
(p) Borrower shall utilize Lender (i) to place any permanent financing of the Property through Fxxxxx Mae, Fxxxxxx Mac, FHA or a life insurance company, or (ii) to provide any commercial mortgage backed securities loan for the Property. The terms of such permanent financing shall be consistent with then prevailing terms. The placement fee canceled on permanent financing shall be the greater of 50 basis points on such permanent loan amount or the minimum fee permitted by the agency providing such permanent loan. If Borrower does not utilize Lender for the placement or provision of such permanent financing, Borrower shall be required to pay an exit fee equal to $502,950.00 (2% of the Loan Amount), which fee shall be due and payable at the earlier of the Maturity Date (as defined in the Note) or the repayment of the Note (whether voluntarily or after an Event of Default).
(q) Subject to Section 6.1(s) below, Borrower will (i) keep and maintain the Property in good working order and condition, ordinary wear and tear excepted, and (ii) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are approved by Lender with Lender named as mortgagee, loss payee and additional insured. Such insurance coverages shall include:
(i) An all-risk policy of permanent property insurance insuring the Property against all risks of any kind or character except those permitted by Lender in writing to be excluded from coverage thereunder.
(ii) A boiler and machinery insurance policy covering loss or damage to all portions of the Property comprised of air-conditioning and heating systems, other pressure vessels, machinery, boilers or high pressure piping.
(iii) An all-risk policy of insurance covering loss of earnings and/or rents from the Property in the event that the Property is not available for use or occupancy due to casualty, damage or destruction required to be covered by the policies of insurance described in (i) and (ii) above.
(iv) Commercial general liability, auto liability, umbrella or excess liability and worker's compensation insurance against claims for bodily injury, death or property damage occurring on, in or about the Property in an amount and containing terms acceptable to the Lender.
(v) Such other insurance against other insurable hazards, risks or casualties which at the time are commonly insured against in the case of owners and premises similarly situated, due regard being given to the financial condition of Borrower, the height and type of the Property, its construction, location, use and occupancy.
(vi) All required insurance will be written on forms acceptable to Lender and by companies having a Best's Insurance Guide Rating of not less than A or A+ and which are otherwise acceptable to the Lender, and such insurance (other than third party liability insurance) shall be written or endorsed so that all losses are payable to the Lender. The original policies evidencing such insurance shall be delivered by Borrower to Lender and held by Lender, unless Lender expressly consents to accept insurance certificates instead. Each such policy shall expressly prohibit cancellation or modification of insurance without thirty (30) days' written ’ notice at no cost. Failure of Buyer to Lender. Borrower agrees to furnish respond within three (only to the extent available in the event such premiums are paid directly by tenants) due proof of payment of the premiums for all such insurance to Lender promptly after each such payment is made and in any case at least fifteen (15) days before payment becomes delinquent. All insurance premiums shall be paid in advance, and if requested by Lender, it shall be provided with evidence of such prepayment of insurance premium prior to notice of cancellation. In each instance where Lender's approval is required as set forth above, Lender shall use reasonable efforts to give or deny such approval within ten (103) business days of Lender's receipt of written request thereforfrom Seller for consent shall be deemed consent by Buyer.
(d) Seller will give Buyer prompt written notice of any threatened or actual litigation, suit, arbitration, unsatisfied order or judgment, governmental investigation or proceeding concerning or affecting the Property which is instituted after the date of this Contract and for which Seller has received written notice.
(e) To the extent that any rental units become vacant at the Property more than five (5) business days prior to the Closing Date, Seller shall cause such vacant units to be put in rent ready condition in accordance with Seller's present Property operations, and if not given within Seller fails to place such ten units in rent ready condition by the Closing Date (10“Non-Rent Ready Unit”), Seller shall grant to Buyer a credit at Closing against the Purchase Price in an amount equal to Seven Hundred Fifty Dollars ($750.00) for each such Non-Rent Ready Unit. Units that become vacant five (5) business day period, shall be deemed disapproved. Lender has approved the insurance as provided in the certificates presented days or less prior to the date hereof.
Closing shall be assumed to be non-rent ready and accordingly, Buyer shall receive the applicable rent ready credit(s) therefor. Rent-ready condition shall mean the condition in which Seller currently delivers vacant units to new tenants at the Property, painted and cleaned, with all appliances, fixtures, and equipment therein in good working order. In connection with the covenant in this Section 12.1(e), within two (r2) Borrower agrees that Lender may order an updated appraisal for business days prior to the Closing Date, Buyer will be permitted to inspect the vacant units at the Property at Borrower's expense at any time with a representative of Seller upon the occurrence and during the continuance of an Event of Defaultnot less than 24 hours prior notice to Seller to determine what units are not in rent ready condition.
(s) Borrower shall inform Lender in writing if it is going to do the New Parking Construction work and provide Lender a description of the work to be done, the budgeted cost, the anticipated start and completion dates, and confirmation that the cost of the work is being paid by Borrower through equity (and not Indebtedness). Lender shall have approval rights with respect to this New Parking Construction, which approval shall not be unreasonably withheld, delayed or conditioned. The New Parking Construction work should not interfere with the normal operation and use of the Property except for certain temporary changes affecting the parking garage during the New Parking Construction. Appropriate construction permits should be obtained, and the New Parking Construction work done in accordance with applicable law. The cost of the New Parking Construction work should be paid by additional capital contributions, not by Indebtedness. Subject to Section 8.1(e) below, the Property should be kept free of mechanic liens or any other liens. Borrower shall keep Lender informed from time to time regarding the progress of the New Parking Construction work and provide a copy of the certificate of occupancy for it when the work has been completed.
Appears in 1 contract
Samples: Purchase and Sale Contract (Resource Real Estate Opportunity REIT, Inc.)
