Common use of Unencumbered Asset Pool Clause in Contracts

Unencumbered Asset Pool. 4.1 Additions of Property to the Unencumbered Asset Pool. (a) In addition to the real property described in Exhibit A attached hereto, Borrower may from time to time request Administrative Agent to add a new property (a "Nominated Property") to the Unencumbered Asset Pool. To become an Unencumbered Asset Pool Property, a Nominated Property must satisfy each of the following conditions: (1) Borrower shall hold fee simple title to such Nominated Property (except in the case of Bristol Commons, in which case Borrower shall own a 99% interest in such property); (2) Such Nominated Property is operated as residential apartments, with no more than fifteen percent (15%) of gross revenue generated by retail tenants; (3) Such Nominated Property shall have minimum occupancy of eighty percent (80%), and if admitted to the Unencumbered Asset Pool would not cause the aggregate occupancy of the Unencumbered Asset Pool Properties to be less than ninety percent (90%); (4) Administrative Agent shall have received a Phase I environmental site assessment for such Nominated Property, in form and substance reasonably acceptable to Administrative Agent and prepared within one (1) year of its delivery, and such environmental site assessment (i) shall not disclose the presence of any material toxic or hazardous substances on the Nominated Property (other than asbestos or asbestos containing materials ("ACM") or Hazardous Substances used for cleaning, pool and other chemicals typically located on residential properties that are otherwise consistent with all applicable laws) and (ii) if such environmental site assessment discloses the presence of asbestos or ACM on the Nominated Property, all such asbestos or ACM shall be in a condition reasonably acceptable to Administrative Agent, shall be subject to an O&M Plan reasonably acceptable to Administrative Agent, and Borrower shall be performing its obligations under such O&M Plan in a manner reasonably acceptable to Administrative Agent; and (5) Such Nominated Property shall be free of all liens, encumbrances and negative pledges, except for the following permitted liens ("Permitted Liens"): (i) liens for taxes, assessments or governmental charges or levies to the extent that Borrower is not yet required to pay the amount secured thereby; and (ii) liens imposed by law, such as carrier's, warehouseman's, mechanic's, materialman's and other similar liens, arising in the ordinary course of business in respect of obligations that are not overdue or are being actively contested in good faith by appropriate proceedings, as long as the Borrower has established and maintained adequate reserves for the payment of the same and, by reason of nonpayment, no property of Borrower is in danger of being lost or forfeited; and (iii) easements; covenants, conditions and restrictions; reciprocal easement and access agreements and similar agreements relating to ownership and operation. Nominated Properties that satisfy all of the foregoing conditions will automatically become Unencumbered Asset Pool Properties so long as Guarantor has a BBB-/Baa3 or better credit rating from any Rating Agency at the time such conditions are satisfied. If Guarantor's credit rating is less than BBB-/Baa3, Nominated Properties will become Unencumbered Asset Pool Properties at the sole and absolute discretion of the Required Lenders. Notwithstanding the foregoing conditions, each of the properties commonly known as The Essex and Vista del Mar may be included as part of the Unencumbered Asset Pool with an Unencumbered Asset Value equal to fifty percent (50%) of cost upon (i) Administrative Agent's receipt of satisfactory evidence of the completion of construction and receipt of certificates of occupancy, and (ii) satisfaction of each of the foregoing conditions other than the occupancy conditions set forth in paragraph (3) above. Increases in the Unencumbered Asset Value for such properties shall be based on annualized operating results for at least one full calendar quarter applied to the definition of the term "Unencumbered Asset Value". Each such property shall cease to be an Unencumbered Asset Pool Property if it fails to meet all of the conditions set forth in this Section 4.1(a) on or before the first anniversary of the date that such property became an Unencumbered Asset Pool Property. (b) Borrower may from time to time elect to remove an Unencumbered Asset Pool Property from the Unencumbered Asset Pool. Borrower shall make such an election by giving Administrative Agent notice in writing, setting forth the identity of the Unencumbered Asset Pool Property and the requested date of removal no less than thirty (30) days before the requested date of removal. With such notice, Borrower shall also deliver a compliance certificate substantially similar to the form of Exhibit E signed and certified by an authorized financial officer of Borrower (i) setting forth the information and computations (in sufficient detail) to determine the Unencumbered Asset Pool Value after such removal and to establish that Borrower will be in compliance with all financial covenants set forth in this Agreement following such removal, (ii) stating specifically that the aggregate principal amount of Loans outstanding after such removal will be less than or equal to the Availability, and (iii) setting forth whether there exists or to the best of Borrower's knowledge as of the date of such removal there will exist, any Default or Event of Default and, if any such Default or Event of Default exists, specifying the nature thereof and the action Borrower is taking and proposes to take with respect thereto. At the time of any such removal, Borrower shall pay Administrative Agent all reasonable attorneys' fees (including fees for in-house counsel) incurred by Administrative Agent in connection with removing the property from the Unencumbered Asset Pool and shall make any payments to continue compliance with the terms of this Agreement, including those relating to the requirement that the aggregate principal amount outstanding on the Loans not exceed the Availability, necessary as a result of the requested removal. Borrower may not remove the Unencumbered Asset Pool Property until it has complied with the terms of this Section 4.1(b). (c) Administrative Agent may, at its option, remove any property from the Unencumbered Asset Pool if it determines in its reasonable discretion that the property no longer satisfies all of the conditions set forth in Section 4.1(a), provided that Administrative Agent first gives Borrower written notice that the property no longer meets the conditions for being an Unencumbered Asset Pool Property set forth in Section 4.1(a), together with the reason or reasons why it does not, and gives Borrower thirty (30) days after receipt of such notice to cure the defect. At the time of any such removal, Borrower shall pay Administrative Agent all reasonable attorneys' fees (including fees for in-house counsel) incurred by Administrative Agent in connection with removing the property from the Unencumbered Asset Pool, and shall make any payments to continue compliance with the terms of this Agreement, including but not limited to those relating to the requirement that the aggregate principal amount outstanding on the Loans not exceed the Availability, necessary as a result of such removal. If the Unencumbered Asset Pool as a whole fails to meet any of the conditions set forth in Section 4.1(a), and any one of two or more properties might be removed to maintain compliance of the Unencumbered Asset Pool as a whole with the conditions set forth in Section 4.1(a), then Borrower shall select the property or properties to be removed, provided that if it does not do so within ten (10) days of written request to do so from Administrative Agent, then Administrative Agent may in its sole discretion select the property or properties to remove and so remove them. Notwithstanding the foregoing, the property commonly known as Marina Cove shall not cease to be an Unencumbered Asset Pool Property solely because a portion of that property has been acquired by ground lease and not by fee simple.

Unencumbered Asset Pool. 4.1 Additions of Borrowers may at any time add a Qualified Unencumbered Asset Pool Property to the Unencumbered Asset Pool. (a) In addition Pool pursuant to this Section 2.11, which process shall be initiated by delivery by Borrowers to the real property described in Exhibit A attached hereto, Borrower may from time to time request Administrative Agent to add a new property (a "Nominated Property") which the Administrative Agent shall promptly distribute to the Unencumbered Asset Pool. To become an Banks) of a description, in reasonable detail, of the Qualified Unencumbered Asset Pool Property, the most recent year operating income statement related thereto (to the extent available), cash flow projections for such property for the next twelve (12) months, a Nominated Property must satisfy each description of all tenants and leases with respect thereto, a certification of a Senior Officer of the following conditions: Borrowers that Parent has obtained a reasonably current (1but in no event older than twelve months) Borrower shall hold fee simple title to such Nominated Property (except in the case of Bristol Commons, in which case Borrower shall own a 99% interest in such property); (2) Such Nominated Property is operated as residential apartments, with no more than fifteen percent (15%) of gross revenue generated by retail tenants; (3) Such Nominated Property shall have minimum occupancy of eighty percent (80%), and if admitted to the Unencumbered Asset Pool would not cause the aggregate occupancy of the Unencumbered Asset Pool Properties to be less than ninety percent (90%); (4) Administrative Agent shall have received a Phase I environmental site assessment for such Nominated Property, in form and substance reasonably acceptable prepared by a qualified independent expert with respect to Administrative Agent and prepared within one (1) year of its deliverythe property which provides that there are no recognized environmental conditions thereon that require further action, and such environmental site assessment (i) shall not disclose the presence of other written materials reasonably requested by any material toxic or hazardous substances on the Nominated Property (other than asbestos or asbestos containing materials ("ACM") or Hazardous Substances used for cleaning, pool and other chemicals typically located on residential properties that are otherwise consistent with all applicable laws) and (ii) if such environmental site assessment discloses the presence of asbestos or ACM on the Nominated Property, all such asbestos or ACM shall be in a condition reasonably acceptable to Administrative Agent, shall be subject to an O&M Plan reasonably acceptable to Administrative Agent, and Borrower shall be performing its obligations under such O&M Plan in a manner reasonably acceptable to Administrative Agent; and (5) Such Nominated Property shall be free of all liens, encumbrances and negative pledges, except for the following permitted liens ("Permitted Liens"): (i) liens for taxes, assessments or governmental charges or levies Bank to the extent that Borrower is not yet required reasonably available to pay Borrowers without undue expense or effort. Notwithstanding the amount secured thereby; and (ii) liens imposed by law, such as carrier's, warehouseman's, mechanic's, materialman's and satisfaction of all other similar liens, arising criteria specified in the ordinary course of business in respect of obligations that are not overdue or are being actively contested in good faith by appropriate proceedings, as long as the Borrower has established and maintained adequate reserves for the payment of the same and, by reason of nonpaymentthis Agreement, no property of Borrower is in danger of being lost or forfeited; and (iii) easements; covenants, conditions and restrictions; reciprocal easement and access agreements and similar agreements relating to ownership and operation. Nominated Properties that satisfy all of the foregoing conditions will automatically become Qualified Unencumbered Asset Pool Properties so long as Guarantor has a BBB-/Baa3 or better credit rating from any Rating Agency at Property presented by Borrowers for inclusion in the time such conditions are satisfied. If Guarantor's credit rating is less than BBB-/Baa3, Nominated Properties will become Unencumbered Asset Pool Properties at the sole shall be deemed added to and absolute discretion of the Required Lenders. Notwithstanding the foregoing conditions, each of the properties commonly known as The Essex and Vista del Mar may be included as to constitute part of the Unencumbered Asset Pool with an Unencumbered Asset Value equal to fifty percent (50%) of cost upon (i) until such time as Administrative Agent's receipt of satisfactory evidence of the completion of construction and receipt of certificates of occupancy, and (ii) satisfaction of each of the foregoing conditions other than the occupancy conditions set forth in paragraph (3) above. Increases in the Unencumbered Asset Value for such properties Agent shall be based on annualized operating results for at least one full calendar quarter applied to the definition of the term "Unencumbered Asset Value". Each have determined that such property shall cease to be an meets all the requirements of a Qualified Unencumbered Asset Pool Property if it fails to meet all under this Agreement (or any such requirements shall have been waived in writing by the Requisite Banks), and the Requisite Banks shall have approved in their reasonable discretion the inclusion of the conditions set forth in this Section 4.1(a) on or before the first anniversary of the date that such property became an Unencumbered Asset Pool Property. (b) Borrower may from time to time elect to remove an Qualified Unencumbered Asset Pool Property from the in Unencumbered Asset Pool. Borrower shall make such an election by giving , and Administrative Agent notice so notifies the Parent and the Banks in writing, setting forth the identity of the Unencumbered Asset Pool Property and the requested date of removal no less than thirty (30) days before the requested date of removal. With such notice, Borrower shall also deliver Borrowers may remove a compliance certificate substantially similar to the form of Exhibit E signed and certified by an authorized financial officer of Borrower (i) setting forth the information and computations (in sufficient detail) to determine the Unencumbered Asset Pool Value after such removal and to establish that Borrower will be in compliance with all financial covenants set forth in this Agreement following such removal, (ii) stating specifically that the aggregate principal amount of Loans outstanding after such removal will be less than or equal to the Availability, and (iii) setting forth whether there exists or to the best of Borrower's knowledge as of the date of such removal there will exist, any Default or Event of Default and, if any such Default or Event of Default exists, specifying the nature thereof and the action Borrower is taking and proposes to take with respect thereto. At the time of any such removal, Borrower shall pay Administrative Agent all reasonable attorneys' fees (including fees for in-house counsel) incurred by Administrative Agent in connection with removing the property from the Unencumbered Asset Pool and shall make any payments to continue compliance with the terms of this Agreement, including those relating by delivery to the requirement Administrative Agent (for distribution to the Banks) of a written notice to that effect, accompanied by a Certificate of a Senior Officer of Borrowers setting forth the aggregate principal amount outstanding revised Borrowing Base as of the most recently-ended Fiscal Quarter resulting from such removal, which removal shall be effective on the Loans not exceed third (3rd) day after the Availability, necessary as a result date of the requested removalsuch notice. Borrower may not remove the Unencumbered Asset Pool Property until it has complied with the terms of this Section 4.1(b). (c) Administrative Agent may, at its optionupon five (5) Banking Days' notice to Borrowers, remove any property from the Unencumbered Asset Pool if it determines in its reasonable discretion that Property which at any time fails to continue to meet the property no longer satisfies all requirements of the conditions set forth in Section 4.1(a), provided that Administrative Agent first gives Borrower written notice that the property no longer meets the conditions for being an a Qualified Unencumbered Asset Pool Property set forth Property, as specified in Section 4.1(a), together with the reason or reasons why it does not, and gives Borrower thirty (30) days after receipt of such notice to cure the defect. At the time of any such removal, Borrower shall pay Administrative Agent all reasonable attorneys' fees (including fees for in-house counsel) incurred by Administrative Agent in connection with removing the property from the Unencumbered Asset Pool, and shall make any payments to continue compliance with the terms of this Agreement, including but not limited to those relating to the requirement that the aggregate principal amount outstanding on the Loans not exceed the Availability, necessary as a result of such removal. If the Unencumbered Asset Pool as a whole fails to meet any of the conditions set forth in Section 4.1(a), and any one of two or more properties might be removed to maintain compliance of the Unencumbered Asset Pool as a whole with the conditions set forth in Section 4.1(a), then Borrower shall select the property or properties to be removed, provided that if it does not do so within ten (10) days of written request to do so from Administrative Agent, then Administrative Agent may in its sole discretion select the property or properties to remove and so remove them. Notwithstanding the foregoing, the property commonly known as Marina Cove shall not cease to be an Unencumbered Asset Pool Property solely because a portion of that property has been acquired by ground lease and not by fee simple.

Unencumbered Asset Pool. 4.1 Additions (a) Cause all of the Revenue-Producing Properties in the Unencumbered Asset Pool to satisfy all of the following conditions: (i) each of the Revenue-Producing Properties shall be wholly owned in fee simple absolute by the Operating Partnership or by a Borrower that is a Wholly-Owned Subsidiary of the Operating Partnership (other than as specified in the definition of Qualified Unencumbered Asset Pool Property with respect to the Exception Properties); (ii) the Revenue-Producing Properties in the Unencumbered Asset Pool shall consist solely of Revenue-Producing Properties which shall at all times have an aggregate leasing level (on a portfolio basis) of at least eighty-five percent (85%) of the Net Rentable Area within such Revenue-Producing Properties, based on bona fide arm's length tenant leases which are in full force and effect requiring current rental payments and which are in good standing and not in default and whose tenants are not subject to any bankruptcy or other insolvency proceeding ("Currently Effective Leases"); and no individual Revenue-Producing Property may be less than 75% leased pursuant to Currently Effective Leases (other than the 000 Xxxxxxxxxx Xxxx Property, which may be 73% leased pursuant to Currently Effective Leases); (iii) no individual Revenue-Producing Property in the Unencumbered Asset Pool may account for more than 33% of the total amount of the Borrowing Base; and (iv) no single tenant or group of tenants which are Affiliates may generate more than 20% of the annual minimum rent generated by all Revenue-Producing Properties in the Unencumbered Asset Pool. (ab) In addition to Cause all of the real property described Development Properties in Exhibit A attached hereto, Borrower may from time to time request Administrative Agent to add a new property (a "Nominated Property") to the Unencumbered Asset Pool. To become an Unencumbered Asset Pool Property, a Nominated Property must to satisfy each all of the following conditions: (1i) Borrower each of the Development Properties shall hold be wholly owned in fee simple title to such Nominated Property (except in absolute by the case Operating Partnership or by another Borrower that is a Wholly-Owned Subsidiary of Bristol Commons, in which case Borrower shall own a 99% interest in such property)the Operating Partnership; (2ii) Such Nominated Property is operated as residential apartments, with no more than fifteen percent (15%) each of gross revenue generated by retail tenants; (3) Such Nominated Property shall have minimum occupancy of eighty percent (80%), and if admitted to the Development Properties in the Unencumbered Asset Pool would must be at least 75% pre-leased pursuant to bona fide arm's length tenant leases which are not cause in default and whose tenants are not subject to any bankruptcy or other insolvency proceeding and which shall require rent to commence (after a free rent period of not to exceed six (6) months) upon the aggregate occupancy completion of the Life Sciences Building(s) to be constructed on such Development Property; and (iii) The Development Properties in the Unencumbered Asset Pool may not in aggregate account for more than 20% of the total amount of the Borrowing Base. (c) Provide to the Administrative Agent as of the Closing Date and concurrently with the delivery of the financial statements described in Section 7.1(c) as part of the Compliance Certificate required pursuant to Section 7.2, (i) a list of the Revenue-Producing Properties and the Development Properties in the Unencumbered Asset Pool, (ii) the certification of a Senior Officer of the Borrowers of the Asset Values of the Revenue-Producing Properties and the amounts of Invested Cash with respect to be less than ninety percent the Development Properties (90%and the status of construction thereon); , and that such properties are in compliance with Sections 5.17(a) and (b), (iii) operating statements setting forth the NOI and Net Capital Expenditures for each of the Revenue-Producing Properties in the Unencumbered Asset Pool for the previous four (4) Administrative Agent shall have received fiscal quarters (or such shorter period as the Revenue-Producing Property has been held by the Borrowers if such statements are not available to Borrowers) certified as true and correct by a Phase I environmental site assessment for such Nominated Property, in form and substance reasonably acceptable to Administrative Agent and prepared within one (1) year Senior Officer of its deliverythe Borrowers, and such environmental site assessment (iiv) shall not disclose a certificate that the presence of any material toxic or hazardous substances on Revenue-Producing Properties and the Nominated Property (other than asbestos or asbestos containing materials ("ACM") or Hazardous Substances used for cleaning, pool and other chemicals typically located on residential properties that are otherwise consistent with all applicable laws) and (ii) if such environmental site assessment discloses the presence of asbestos or ACM on the Nominated Property, all such asbestos or ACM shall be in a condition reasonably acceptable to Administrative Agent, shall be subject to an O&M Plan reasonably acceptable to Administrative Agent, and Borrower shall be performing its obligations under such O&M Plan in a manner reasonably acceptable to Administrative Agent; and (5) Such Nominated Property shall be free of all liens, encumbrances and negative pledges, except for the following permitted liens ("Permitted Liens"): (i) liens for taxes, assessments or governmental charges or levies to the extent that Borrower is not yet required to pay the amount secured thereby; and (ii) liens imposed by law, such as carrier's, warehouseman's, mechanic's, materialman's and other similar liens, arising Development Properties in the ordinary course of business in respect of obligations that are not overdue or are being actively contested in good faith by appropriate proceedings, as long as the Borrower has established and maintained adequate reserves for the payment of the same and, by reason of nonpayment, no property of Borrower is in danger of being lost or forfeited; and (iii) easements; covenants, conditions and restrictions; reciprocal easement and access agreements and similar agreements relating to ownership and operation. Nominated Properties that satisfy all of the foregoing conditions will automatically become Unencumbered Asset Pool Properties so long as Guarantor has comply with the terms of Sections 4.17 and 4.19. (d) In the event that all or any material portion of a BBB-/Baa3 or better credit rating from any Rating Agency at Revenue-Producing Property within the time such conditions are satisfied. If Guarantor's credit rating is less than BBB-/Baa3, Nominated Properties will become Unencumbered Asset Pool Properties at the sole and absolute discretion of the Required Lenders. Notwithstanding the foregoing conditionsshall be damaged or taken by condemnation, each of the properties commonly known as The Essex and Vista del Mar may then such property shall no longer be included as a part of the Unencumbered Asset Pool with an Unencumbered Asset Value equal unless and until any damage to fifty percent (50%) of cost upon (i) such property is repaired or restored, such Revenue-Producing Property becomes fully operational and the Administrative Agent's receipt of Agent shall receive evidence satisfactory evidence to the Administrative Agent of the completion value and NOI of construction and receipt such Revenue-Producing Property following such repair or restoration. In the event that all or any material portion of certificates of occupancy, and (ii) satisfaction of each of the foregoing conditions other than the occupancy conditions set forth in paragraph (3) above. Increases in the Unencumbered Asset Value for such properties shall be based on annualized operating results for at least one full calendar quarter applied to the definition of the term "Unencumbered Asset Value". Each such property shall cease to be an Unencumbered Asset Pool a Development Property if it fails to meet all of the conditions set forth in this Section 4.1(a) on or before the first anniversary of the date that such property became an Unencumbered Asset Pool Property. (b) Borrower may from time to time elect to remove an Unencumbered Asset Pool Property from the Unencumbered Asset Pool. Borrower shall make such an election by giving Administrative Agent notice in writing, setting forth the identity of within the Unencumbered Asset Pool Property and shall be damaged or taken by condemnation, then Administrative Agent may reduce the requested date of removal no less than thirty (30) days before the requested date of removal. With such notice, Borrower shall also deliver a compliance certificate substantially similar to the form of Exhibit E signed and certified by an authorized financial officer of Borrower (i) setting forth the information and computations (in sufficient detail) to determine the Unencumbered Asset Pool Value after such removal and to establish that Borrower will be in compliance with all financial covenants set forth in this Agreement following such removal, (ii) stating specifically that the aggregate principal amount of Loans outstanding after such removal will be less than or equal to the Availability, and (iii) setting forth whether there exists or to the best of Borrower's knowledge as of the date Borrowing Base in an amount which Administrative Agent reasonably deems appropriate in light of such removal there will exist, any Default damage or Event of Default and, if any condemnation; or may remove such Default or Event of Default exists, specifying the nature thereof and the action Borrower is taking and proposes to take with respect thereto. At the time of any such removal, Borrower shall pay Administrative Agent all reasonable attorneys' fees (including fees for in-house counsel) incurred by Administrative Agent in connection with removing the property from the Unencumbered Asset Pool unless and shall make any payments until such property is repaired or restored to continue compliance with the terms of this Agreement, including those relating to the requirement that the aggregate principal amount outstanding on the Loans not exceed the Availability, necessary as a result of the requested removal. Borrower may not remove the Unencumbered Asset Pool Property until it has complied with the terms of this Section 4.1(b). (c) Administrative Agent may, at its option, remove any property from the Unencumbered Asset Pool if it determines in its reasonable discretion that the property no longer satisfies all of the conditions set forth in Section 4.1(a), provided that Administrative Agent first gives Borrower written notice that the property no longer meets the conditions for being an Unencumbered Asset Pool Property set forth in Section 4.1(a), together with the reason or reasons why it does not, and gives Borrower thirty (30) days after receipt of such notice to cure the defect. At the time of any such removal, Borrower shall pay Administrative Agent all reasonable attorneys' fees (including fees for in-house counsel) incurred by Administrative Agent in connection with removing the property from the Unencumbered Asset Pool, and shall make any payments to continue compliance with the terms of this Agreement, including but not limited to those relating to the requirement that the aggregate principal amount outstanding on the Loans not exceed the Availability, necessary as a result of such removal. If the Unencumbered Asset Pool as a whole fails to meet any of the conditions set forth in Section 4.1(a), and any one of two or more properties might be removed to maintain compliance of the Unencumbered Asset Pool as a whole with the conditions set forth in Section 4.1(a), then Borrower shall select the property or properties to be removed, provided that if it does not do so within ten (10) days of written request to do so from Administrative Agent, then Administrative Agent may in its sole discretion select the property or properties to remove and so remove them. Notwithstanding the foregoing, the property commonly known as Marina Cove shall not cease to be an Unencumbered Asset Pool Property solely because a portion of that property has been acquired by ground lease and not by fee simple's reasonable satisfaction.