Unencumbered Borrowing Base Properties. (a) The Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions: (i) each of the Unencumbered Borrowing Base Properties shall be owned 100% in fee simple or leased under a Ground Lease by the Borrower or, subject to the terms of this Agreement, a Subsidiary Guarantor, free and clear of all Liens other than the Liens permitted in §8.2(ii) and (v), and such Unencumbered Borrowing Base Property does not have applicable to it any restriction on the pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor with respect to any other Secured Indebtedness; (ii) none of the Unencumbered Borrowing Base Properties shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or refinance such property; (iii) such Unencumbered Borrowing Base Property is managed by the Borrower or a Wholly Owned Subsidiary of the Borrower, or a third party manager approved by the Agent, such approval not to be unreasonably withheld; (iv) prior to inclusion of Real Estate within the Unencumbered Borrowing Base Properties, Borrower shall have delivered to Agent a physical description of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.5 and compliance with this §7.19; (v) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is consistent with Borrower’s business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect; (vi) no Person other than Borrower or a Subsidiary Guarantor has any direct or indirect ownership of any equity interest or other Voting Interest in such Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Subsidiary Guarantor (it being understood that no such Person shall be deemed to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Trust or owning any limited partnership interest in the Borrower, and if such Unencumbered Borrowing Base Property is owned (or leased) by a Subsidiary Guarantor, the Borrower’s direct and indirect interest in such Subsidiary Guarantor shall be free and clear of all Liens); (vii) such Real Estate has been designated as an “Unencumbered Borrowing Base Property” on Schedule 6.31 hereto or in a Borrowing Base Property Certificate in accordance with §7.4(e) or delivered pursuant to this §7.19, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(d) or §7.19(e); (viii) the number of properties included within the Unencumbered Borrowing Base Properties shall not be less than ten (10) and shall provide Borrowing Base Availability of not less than $200,000,000.00 ; (ix) the Unencumbered Borrowing Base Properties shall consist solely of Real Estate which has (A) an aggregate occupancy level of tenants (excluding the Borrower or any of its Affiliates) in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent and which are not otherwise in default of at least eighty percent (80%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect (provided, however, with respect to the calculations set forth in this §7.19(a)(ix)(A) the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area of the applicable Unencumbered Borrowing Base Property when making such calculation), and (B) an aggregate level of tenants (excluding the Borrower or any of its Affiliates) under leases in such Unencumbered Borrowing Base Properties (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis) which are paying rent and which are not in default of at least eighty-five percent (85%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower may temporarily remove an Unencumbered Borrowing Base Property from the foregoing occupancy calculations with respect to an Unencumbered Borrowing Base Property (x) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing as a property that can be excluded from such calculation. Without limiting the foregoing, the Agent shall not be required to approve the removal of such property from the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Unencumbered Borrowing Base Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is twenty-four (24) months following the initial approval of such Unencumbered Borrowing Base Property as a Redevelopment Property for the purposes of this §7.19; (x) no more than ten percent (10%) of the Borrowing Base Availability of the Unencumbered Borrowing Base Properties shall be properties leased by Borrower or a Subsidiary Guarantor as the lessee or tenant under a Ground Lease; and (xi) other than with respect to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) of the Borrowing Base Availability of all of the Unencumbered Borrowing Base Properties. (b) In the event that all or any material portion of any Real Estate within the Unencumbered Borrowing Base Properties shall be damaged or taken by condemnation, then such Real Estate shall no longer be a part of the Unencumbered Borrowing Base Properties unless and until (i) any damage to such Real Estate is repaired or restored, such Real Estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the Operating Cash Flow of such Real Estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow of such Real Estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. (c) In the event that any Subsidiary of the Borrower that is not a Guarantor owns Real Estate which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only in the event that all of the terms and conditions of this §7.19(c) and §5.2 are satisfied: (i) Such Subsidiary shall be a Subsidiary Guarantor; (ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations; (iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Guarantor; (iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and (v) The Real Estate assets acquired or owned by such Subsidiary Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder. (d) Upon any Unencumbered Borrowing Base Property ceasing to qualify as an Unencumbered Borrowing Base Property, such Unencumbered Borrowing Base Property shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified Unencumbered Borrowing Base Property, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5. (e) In addition, the Borrower may voluntarily remove any Real Estate from the Unencumbered Borrowing Base Properties by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Borrowing Base Property being removed, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5.
Appears in 3 contracts
Samples: Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust), Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust), Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Unencumbered Borrowing Base Properties. (a) The Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties shall be owned 100% in fee simple or leased under a Ground Lease by the Borrower or, subject to the terms of this Agreement, a Subsidiary Guarantor, free and clear of all Liens other than the Liens permitted in §8.2(ii) and (v), and such Unencumbered Borrowing Base Property does not have applicable to it any restriction on the pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor with respect to any other Secured IndebtednessIndebtedness other than the Obligations;
(ii) none of the Unencumbered Borrowing Base Properties shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or refinance such property;
(iii) such Unencumbered Borrowing Base Property is managed by the Borrower or a Wholly Owned Subsidiary of the Borrower, or a third party manager approved by the Agent, such approval not to be unreasonably withheld;
(iv) prior to inclusion of Real Estate within the Unencumbered Borrowing Base Properties, Borrower shall have delivered to Agent a physical description of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.5 and compliance with this §7.19;
(v) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is consistent with Borrower’s business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect;
(vi) no Person other than Borrower or a Subsidiary Guarantor has any direct or indirect ownership of any equity interest or other Voting Interest in such Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Subsidiary Guarantor (it being understood that no such Person shall be deemed to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Trust or owning any limited partnership interest in the Borrower, and if such Unencumbered Borrowing Base Property is owned (or leased) by a Subsidiary Guarantor, the Borrower’s direct and indirect interest in such Subsidiary Guarantor shall be free and clear of all Liens);
(vii) such Real Estate has been designated as an “Unencumbered Borrowing Base Property” on Schedule 6.31 hereto or in a Borrowing Base Property Certificate in accordance with §7.4(e) or delivered pursuant to this §7.19, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(d) or §7.19(e);
(viii) the number of properties included within the Unencumbered Borrowing Base Properties shall not be less than ten (10) and shall provide Borrowing Base Availability of not less than $200,000,000.00 ;
(ix) the Unencumbered Borrowing Base Properties shall consist solely of Real Estate which has (A) an aggregate occupancy level of tenants (excluding the Borrower or any of its Affiliates) in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent and which are not otherwise in default of at least eighty percent (80%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect (provided, however, with respect to the calculations set forth in this §7.19(a)(ix)(A) the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area of the applicable Unencumbered Borrowing Base Property when making such calculation), and (B) an aggregate level of tenants (excluding the Borrower or any of its Affiliates) under leases in such Unencumbered Borrowing Base Properties (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis) which are paying rent and which are not in default of at least eighty-five percent (85%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower may temporarily remove an Unencumbered Borrowing Base Property from the foregoing occupancy calculations with respect to an Unencumbered Borrowing Base Property (x) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing as a property that can be excluded from such calculation. Without limiting the foregoing, the Agent shall not be required to approve the removal of such property from the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Unencumbered Borrowing Base Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is twenty-four (24) months following the initial approval of such Unencumbered Borrowing Base Property as a Redevelopment Property for the purposes of this §7.19;
(x) no more than ten percent (10%) of the Borrowing Base Availability of the Unencumbered Borrowing Base Properties shall be properties leased by Borrower or a Subsidiary Guarantor as the lessee or tenant under a Ground Lease; and
(xi) other than with respect to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) of the Borrowing Base Availability of all of the Unencumbered Borrowing Base Properties.
(b) In the event that all or any material portion of any Real Estate within the Unencumbered Borrowing Base Properties shall be damaged or taken by condemnation, then such Real Estate shall no longer be a part of the Unencumbered Borrowing Base Properties unless and until (i) any damage to such Real Estate is repaired or restored, such Real Estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the Operating Cash Flow of such Real Estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow of such Real Estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(c) In the event that any Subsidiary of the Borrower that is not a Guarantor owns Real Estate which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only in the event that all of the terms and conditions of this §7.19(c) and §5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor;
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Guarantor;
(iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(v) The Real Estate assets acquired or owned by such Subsidiary Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder.
(d) Upon any Unencumbered Borrowing Base Property ceasing to qualify as an Unencumbered Borrowing Base Property, such Unencumbered Borrowing Base Property shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified Unencumbered Borrowing Base Property, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the Unencumbered Borrowing Base Properties by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Borrowing Base Property being removed, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5.
Appears in 2 contracts
Samples: Unsecured Master Loan Agreement (Ramco Gershenson Properties Trust), Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Unencumbered Borrowing Base Properties. (a) The Subject to clause (b) of this §7.17, the Eligible Real Estate included in the calculation of Unencumbered Adjusted NOI, and Unencumbered Asset Value and inclusion as Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties Eligible Real Estate shall be owned one hundred percent (100% %) in fee simple or leased under a Ground Lease by the Borrower, REIT or a Wholly Owned Subsidiary of Borrower or(or as permitted in clause (e) of the definition of Change of Control, subject to the terms of this AgreementBorrower and REIT) (such Subsidiary, a Subsidiary Guarantor“Borrowing Base Subsidiary”), free and clear of all Liens other than the Liens permitted in §8.2(ii8.2(i)(A) and (viii), and such Unencumbered Borrowing Base Property does Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documentsdocuments but excluding any such limitations permitted pursuant to the last sentence of §7.12(a). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor with respect to any other Secured Indebtedness);
(ii) none of the Unencumbered Borrowing Base Properties Eligible Real Estate shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or refinance finance such property, other than the restrictions on sale set forth in Section 7.3 of the Borrower’s Third Amended and Restated Limited Partnership Agreement as in effect on the date of this Agreement with respect to Park Estate and Reserve at Dexter Lake;
(iii) if such Real Estate is owned by a Borrowing Base Subsidiary (other than Colonial LP), the only assets of such Borrowing Base Subsidiary shall be Eligible Real Estate included in the calculation of Unencumbered Adjusted NOI and Unencumbered Asset Value and inclusion as Unencumbered Borrowing Base Property Properties and related fixtures and personal property;
(iv) if multifamily Real Estate, such Real Estate is managed by Manager;
(v) no Person other than the Borrower Borrower, or a direct or indirect Wholly Owned Subsidiary of the Borrower, Borrower (or a third party manager approved by as provided in clause (e) of the Agent, such approval not to be unreasonably withheld;
(iv) prior to inclusion definition of Real Estate within the Unencumbered Borrowing Base PropertiesChange of Control, Borrower shall have delivered to Agent a physical description of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.5 and compliance with this §7.19;
(vREIT) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is consistent with Borrower’s business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect;
(vi) no Person other than Borrower or a Subsidiary Guarantor has any direct or indirect ownership of any equity legal, equitable or beneficial interest or other Voting Interest in such Borrowing Base Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Borrowing Base Subsidiary, and no direct or indirect ownership or other interests or rights in any such Borrowing Base Subsidiary Guarantor (it being understood that no such Person shall be deemed subject to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Trust or owning any limited partnership interest in the Borrower, and if such Unencumbered Borrowing Base Property is owned Lien;
(or leasedvi) by a Subsidiary Guarantor, the Borrower’s direct and indirect interest in such Subsidiary Guarantor shall be free and clear of all Liens)[Reserved];
(vii) such Real Estate has been designated as an “Unencumbered Borrowing Base Property” on Schedule 6.31 hereto or in a Borrowing Base Property Certificate in accordance with §7.4(e) or delivered pursuant to this §7.19, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(d) or §7.19(e)[Reserved];
(viii) the number of properties included within the all Unencumbered Borrowing Base Properties shall not be will at all times have an aggregate Occupancy Rate of no less than ten eighty percent (10) and shall provide Borrowing Base Availability of not less than $200,000,000.00 80%);
(ix) the Unencumbered Borrowing Base Properties Borrower shall consist solely of have delivered to the Agent a written request to include such Eligible Real Estate which has in the calculation of Unencumbered Adjusted NOI and Unencumbered Asset Value, together with (1) a certification that such Eligible Real Estate is in compliance with the requirements of the Credit Agreement and (2) a calculation of Unencumbered Adjusted NOI and Unencumbered Asset Value attributable to such asset, and at the Agent’s request in its sole discretion, each of the following: (A) a physical description of such Eligible Real Estate, (B) a current Rent Roll and current operating statements for such Eligible Real Estate, (C) an aggregate occupancy level of tenants (excluding the Borrower or any of its Affiliates) operating and capital expenditure budget for such Eligible Real Estate in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent form and which are not otherwise in default of at least eighty percent (80%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect (provided, however, with respect substance reasonably satisfactory to the calculations set forth in this Agent, (D) a certification as to the matters covered under §7.19(a)(ix)(A) the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area of the applicable Unencumbered Borrowing Base Property when making such calculation7.17(a)(i)-(v), and (BE) an aggregate level of tenants (excluding such other information as the Borrower or any of its Affiliates) under leases in Agent may reasonably require with respect to such Unencumbered Borrowing Base Properties (Eligible Real Estate, including, but not limited to, any tenant having under lease 25,000 square feet information required by the Agent to determine the Unencumbered Asset Value attributable to such Eligible Real Estate and compliance with this §7.17 (collectively, the “Eligible Real Estate Qualification Documents”); and
(x) such Eligible Real Estate has not been removed from the calculation of Unencumbered Adjusted NOI or more on a holdover Unencumbered Asset Value pursuant to §7.17(c), §7.17(d) or month-to-month basis§7.17(e).
(b) which are paying rent and which are not in default of at least eighty-five percent (85%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower may temporarily remove an in the event any Real Estate does not qualify as Eligible Real Estate or satisfy the requirements of §7.17(a), such Real Estate shall be included in the calculation of Unencumbered Borrowing Base Property from the foregoing occupancy calculations with respect to an Adjusted NOI and Unencumbered Borrowing Base Property (x) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing Asset Value so long as a property that can be excluded from such calculation. Without limiting the foregoing, the Agent shall not be required have received the prior written consent of each of the Required Lenders to approve the removal inclusion of such property from Real Estate in the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Unencumbered Borrowing Base Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is twenty-four (24) months following the initial approval of such Adjusted NOI and Unencumbered Borrowing Base Property as a Redevelopment Property for the purposes of this §7.19;
(x) no more than ten percent (10%) of the Borrowing Base Availability of the Unencumbered Borrowing Base Properties shall be properties leased by Borrower or a Subsidiary Guarantor as the lessee or tenant under a Ground Lease; and
(xi) other than with respect to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) of the Borrowing Base Availability of all of the Unencumbered Borrowing Base PropertiesAsset Value.
(bc) In the event that all or any material portion of any Eligible Real Estate within included in the calculation of Unencumbered Borrowing Base Properties Adjusted NOI or Unencumbered Asset Value shall be materially damaged or taken by condemnation, then such Real Estate property shall no longer be a part included in the calculation of the Unencumbered Borrowing Base Properties Adjusted NOI or Unencumbered Asset Value unless and until (i) any damage to such Real Estate real estate is repaired or restored, such Real Estate real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the Operating Cash Flow value of such Real Estate real estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow value of such Real Estate real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(c) In the event that any Subsidiary of the Borrower that is not a Guarantor owns Real Estate which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only in the event that all of the terms and conditions of this §7.19(c) and §5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor;
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Guarantor;
(iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(v) The Real Estate assets acquired or owned by such Subsidiary Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder.
(d) Upon any Unencumbered Borrowing Base Property asset ceasing to qualify as an to be included in the calculation of Unencumbered Borrowing Base PropertyAdjusted NOI or Unencumbered Asset Value, such Unencumbered Borrowing Base Property asset shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5Unencumbered Adjusted NOI or Unencumbered Asset Value. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified Unencumbered Borrowing Base Propertyasset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability Unencumbered Adjusted NOI and Unencumbered Asset Value attributable to such Unencumbered Borrowing Base Propertyasset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 §9.1, 9.2 and §9.59.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the calculation of Unencumbered Borrowing Base Properties Adjusted NOI and Unencumbered Asset Value in its sole discretion, or upon either of the events described in clause (b) or (c) of §5.3 occurring, by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Borrowing Base Property being removed, and a calculation of the Borrowing Base Availability value attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 7.17, §8.8 and §9.5§9.1, 9.2 and 9.
(f) The Agent shall promptly notify the Lenders of the addition or removal of any Real Estate from the calculation of Unencumbered Adjusted NOI or Unencumbered Asset Value.
Appears in 1 contract
Unencumbered Borrowing Base Properties. (a) The Subject to clause (b) of this §7.17, the Eligible Real Estate included in the calculation of the Borrowing Base Availability and inclusion as Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties Eligible Real Estate shall be owned one hundred percent (100% %) in fee simple or leased under a Ground Lease by the Borrower orBorrower, subject to the terms of this Agreement, REIT or a Subsidiary Guarantor, free and clear of all Liens other than the Liens permitted in §8.2(ii) 8.2(i)A and (viii), and and, such Unencumbered Borrowing Base Property does Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor other than, solely with respect to any other Secured IndebtednessPark Estate and Reserve at Dexter Lake (each as described on Schedule 1.2), the restrictions on sale set forth in Section 6.11 of the Borrower’s Second Amended and Rested Limited Partnership Agreement);
(ii) none of the Unencumbered Borrowing Base Properties Eligible Real Estate shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or refinance finance such property;
(iii) if such Real Estate is owned by a Subsidiary Guarantor, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Borrowing Base Availability and inclusion as Unencumbered Borrowing Base Property is managed by the Borrower or a Wholly Owned Subsidiary of the Borrower, or a third party manager approved by the Agent, such approval not to be unreasonably withheldProperties and related fixtures and personal property;
(iv) prior to inclusion of Real Estate within the Unencumbered Borrowing Base Properties, Borrower shall have delivered to Agent a physical description of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.5 and compliance with this §7.19is managed by Manager;
(v) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is consistent with Borrower’s business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect;
(vi) no Person other than the Borrower (or a Subsidiary Guarantor as provided in clause (e) of the definition of Change of Control, Borrower and REIT) has any direct or indirect ownership of any equity legal, equitable or beneficial interest or other Voting Interest in such Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Subsidiary Guarantor (it being understood that no such Person shall be deemed to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Trust or owning any limited partnership interest in the BorrowerGuarantor, and if such Unencumbered Borrowing Base Property is owned (no direct or leased) by a Subsidiary Guarantor, the Borrower’s direct and indirect interest ownership or other interests or rights in any such Subsidiary Guarantor shall be free and clear subject to any Lien;
(vi) the Unencumbered Borrowing Base Properties included in the calculation of Borrowing Base Availability shall at all Liens)times have an aggregate Unencumbered Asset Value of not less than $250,000,000.00;
(vii) such Real Estate has been designated as an “there shall be at all times at least ten (10) Unencumbered Borrowing Base Property” on Schedule 6.31 hereto or Properties included in a the calculation of the Borrowing Base Property Certificate in accordance with §7.4(e) or delivered pursuant to this §7.19, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(d) or §7.19(e)Availability;
(viii) the number of properties included within the all Unencumbered Borrowing Base Properties shall not be will at all times have an aggregate Occupancy Rate of no less than ten eighty percent (10) and shall provide Borrowing Base Availability of not less than $200,000,000.00 80%);
(ix) the Unencumbered Borrowing Base Properties Borrower shall consist solely of Real Estate which has have delivered to the Agent (A) an aggregate occupancy level of tenants (excluding a written request to include such Eligible Real Estate in the Borrower or any of its Affiliates) in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent and which are not otherwise in default of at least eighty percent (80%) calculation of the Net Rentable Area within such Unencumbered Borrowing Base Properties Availability, (B) a physical description of such Eligible Real Estate, (C) a current Rent Roll and current operating statements for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments such Eligible Real Estate, (D) an operating and which are capital expenditure budget for such Eligible Real Estate in full force form and effect (provided, however, with respect substance reasonably satisfactory to the calculations set forth in this Agent, (E) a certification as to the matters covered under §7.19(a)(ix)(A) the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area of the applicable Unencumbered Borrowing Base Property when making such calculation7.17(a)(i)-(v), and (BF) an aggregate level of tenants (excluding such other information as the Borrower or any of its Affiliates) under leases in such Unencumbered Borrowing Base Properties (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis) which are paying rent and which are not in default of at least eighty-five percent (85%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower Agent may temporarily remove an Unencumbered Borrowing Base Property from the foregoing occupancy calculations reasonably require with respect to an such Eligible Real Estate, including, but not limited to, any information required by the Agent to determine the Unencumbered Borrowing Base Property Asset Value attributable to such Eligible Real Estate and compliance with this §7.17 (x) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing as a property that can be excluded from such calculation. Without limiting the foregoingcollectively, the Agent shall not be required to approve the removal of such property from the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Unencumbered Borrowing Base Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is twenty-four (24) months following the initial approval of such Unencumbered Borrowing Base Property as a Redevelopment Property for the purposes of this §7.19;“Eligible Real Estate Qualification Documents”); and
(x) no more than ten percent (10%) such Eligible Real Estate has not been removed from the calculation of the Borrowing Base Availability pursuant to §7.17(c), §7.17(d) or §7.17(e).
(b) Notwithstanding the foregoing, in the event any Real Estate does not qualify as Eligible Real Estate or satisfy the requirements of the Unencumbered Borrowing Base Properties §7.17(a), such Real Estate shall be properties leased by Borrower or a Subsidiary Guarantor as included in the lessee or tenant under a Ground Lease; and
(xi) other than with respect to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) calculation of the Borrowing Base Availability so long as the Agent shall have received the prior written consent of all each of the Unencumbered Required Lenders to the inclusion of such Real Estate in the calculation of the Borrowing Base PropertiesAvailability.
(bc) In the event that all or any material portion of any Eligible Real Estate within included in the Unencumbered calculation of the Borrowing Base Properties Availability shall be materially damaged or taken by condemnation, then such Real Estate property shall no longer be a part included in the calculation of the Unencumbered Borrowing Base Properties Availability unless and until (i) any damage to such Real Estate real estate is repaired or restored, such Real Estate real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the Operating Cash Flow value of such Real Estate real estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow value of such Real Estate real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(c) In the event that any Subsidiary of the Borrower that is not a Guarantor owns Real Estate which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only in the event that all of the terms and conditions of this §7.19(c) and §5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor;
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Guarantor;
(iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(v) The Real Estate assets acquired or owned by such Subsidiary Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder.
(d) Upon any Unencumbered Borrowing Base Property asset ceasing to qualify as an Unencumbered to be included in the calculation of the Borrowing Base PropertyAvailability, such Unencumbered Borrowing Base Property asset shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5Availability. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified Unencumbered Borrowing Base Propertyasset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Propertyasset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Borrowing Base Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 §9.1, 9.2 and §9.59.3.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the Unencumbered calculation of the Borrowing Base Properties Availability in its sole discretion, or upon either of the events described in clause (b) or (c) of §5.3 occurring, by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the
(f) The Agent shall promptly notify the identity Lenders of the Unencumbered Borrowing Base Property being removed, and a addition or removal of any Real Estate from the calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5Availability.
Appears in 1 contract
Samples: Term Loan Agreement (Mid America Apartment Communities Inc)
Unencumbered Borrowing Base Properties. (a) The Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties shall be owned 100% in fee simple or leased under a Ground Lease by the Borrower or, subject to the terms of this Agreement, a Subsidiary Guarantor, free and clear of all Liens other than the Liens permitted in §Section 8.2(ii) and (v), and such Unencumbered Borrowing Base Property does not have applicable to it any restriction on the pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor with respect to any other Secured Indebtedness;
(ii) none of the Unencumbered Borrowing Base Properties shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or refinance such property;
(iii) such Unencumbered Borrowing Base Property is managed by the Borrower or a Wholly Owned Subsidiary of the Borrower, or a third party manager approved by the Agent, such approval not to be unreasonably withheld;
(iv) prior to inclusion of Real Estate within the Unencumbered Borrowing Base Properties, Borrower shall have delivered to Agent a physical description of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §Section 9.5 and compliance with this §Section 7.19;
(v) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is consistent with Borrower’s 's business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §Section 7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect;
(vi) no Person other than Borrower or a Subsidiary Guarantor has any direct or indirect ownership of any equity interest or other Voting Interest in such Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Subsidiary Guarantor (it being understood that no such Person shall be deemed to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Trust or owning any limited partnership interest in the Borrower, and if such Unencumbered Borrowing Base Property is owned (or leased) by a Subsidiary Guarantor, the Borrower’s direct and indirect interest in such Subsidiary Guarantor shall be free and clear of all Liens);
(vii) such Real Estate has been designated as an “"Unencumbered Borrowing Base Property” " on Schedule 6.31 1.2 hereto or in a Unencumbered Borrowing Base Property Certificate in accordance with §Section 7.4(e) or delivered pursuant to this §Section 7.19, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(dSection 7.19(e) or §7.19(eSection 7.19(f);
(viii) the number of properties included within the Unencumbered Borrowing Base Properties shall not be less than ten (10) and shall provide Borrowing Base Availability of not less than $200,000,000.00 );
(ix) the Unencumbered Borrowing Base Properties shall consist solely of Real Estate which has (A) an aggregate occupancy level of tenants (excluding the Borrower or any of its Affiliates) in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent and which are not otherwise in default of at least eighty seventy percent (80%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect (provided, however, with respect to the calculations set forth in this §7.19(a)(ix)(A) the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area of the applicable Unencumbered Borrowing Base Property when making such calculation), and (B) an aggregate level of tenants (excluding the Borrower or any of its Affiliates) under leases in such Unencumbered Borrowing Base Properties (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis) which are paying rent and which are not in default of at least eighty-five percent (8570%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower may temporarily remove and (B) an Unencumbered Borrowing Base Property from the foregoing occupancy calculations with respect to an Unencumbered Borrowing Base Property aggregate level of tenants under leases in such property (x) that is but not any tenant having under lease 25,000 square feet or more on a Redevelopment Property, (yholdover or month-to-month basis) which is being voluntarily redeveloped by Borrower to reposition such property are paying rent and which are not in default of at least seventy-five percent (z75%) which Agent has approved in writing as a property that can be excluded from such calculation. Without limiting of the foregoing, the Agent shall not be required to approve the removal of such property from the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of Net Rentable Area within such Unencumbered Borrowing Base Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is twenty-four (24) months following the initial approval of such Unencumbered Borrowing Base Property as a Redevelopment Property Properties for the purposes of this §7.19;
(x) no more than ten percent (10%) of the Borrowing Base Availability of the Unencumbered Borrowing Base Properties shall be properties leased by Borrower or a Subsidiary Guarantor as the lessee or tenant under a Ground Lease; and
(xi) other than with respect to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) of the Borrowing Base Availability of all of the Unencumbered Borrowing Base Properties.
(b) In the event that all or any material portion of any Real Estate within the Unencumbered Borrowing Base Properties shall be damaged or taken by condemnation, then such Real Estate shall no longer be a part of the Unencumbered Borrowing Base Properties unless and until (i) any damage to such Real Estate is repaired or restored, such Real Estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the Operating Cash Flow of such Real Estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow of such Real Estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(c) In the event that any Subsidiary previous fiscal quarter of the Borrower that is not a Guarantor owns Real Estate based on bona fide arms-length tenant leases requiring current rental payments and which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only are in the event that all of the terms and conditions of this §7.19(c) and §5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor;
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Guarantor;
(iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; full force and
(v) The Real Estate assets acquired or owned by such Subsidiary Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder.
(d) Upon any Unencumbered Borrowing Base Property ceasing to qualify as an Unencumbered Borrowing Base Property, such Unencumbered Borrowing Base Property shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified Unencumbered Borrowing Base Property, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the Unencumbered Borrowing Base Properties by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Borrowing Base Property being removed, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5.
Appears in 1 contract
Samples: Unsecured Master Loan Agreement (Ramco Gershenson Properties Trust)
Unencumbered Borrowing Base Properties. (a) The Subject to clause (b) of this §7.17, the Eligible Real Estate included in the calculation of Unencumbered Adjusted NOI, and Unencumbered Asset Value and inclusion as Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties Eligible Real Estate shall be owned one hundred percent (100% %) in fee simple or leased under a Ground Lease by the Borrower, REIT or a Wholly Owned Subsidiary of Borrower or(or as permitted in clause (e) of the definition of Change of Control, subject to the terms of this AgreementBorrower and REIT) (such Subsidiary, a Subsidiary Guarantor“Borrowing Base Subsidiary”), free and clear of all Liens other than the Liens permitted in §8.2(ii8.2(i)(A) and (viii), and such Unencumbered Borrowing Base Property does Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documentsdocuments but excluding any such limitations permitted pursuant to the last sentence of §7.12(a). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor with respect to any other Secured Indebtedness);
(ii) none of the Unencumbered Borrowing Base Properties Eligible Real Estate shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or refinance finance such property, other than the restrictions on sale set forth in Section 7.3 of the Borrower’s Third Amended and Restated Limited Partnership Agreement as in effect on the date of this Agreement with respect to Park Estate and Reserve at Dexter Lake;
(iii) if such Real Estate is owned by a Borrowing Base Subsidiary (other than Colonial LP), the only assets of such Borrowing Base Subsidiary shall be Eligible Real Estate included in the calculation of Unencumbered Adjusted NOI and Unencumbered Asset Value and inclusion as Unencumbered Borrowing Base Property Properties and related fixtures and personal property;
(iv) if multifamily Real Estate, such Real Estate is managed by Manager;
(v) no Person other than the Borrower Borrower, or a direct or indirect Wholly Owned Subsidiary of the Borrower, Borrower (or a third party manager approved by as provided in clause (e) of the Agent, such approval not to be unreasonably withheld;
(iv) prior to inclusion definition of Real Estate within the Unencumbered Borrowing Base PropertiesChange of Control, Borrower shall have delivered to Agent a physical description of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.5 and compliance with this §7.19;
(vREIT) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is consistent with Borrower’s business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect;
(vi) no Person other than Borrower or a Subsidiary Guarantor has any direct or indirect ownership of any equity legal, equitable or beneficial interest or other Voting Interest in such Borrowing Base Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Borrowing Base Subsidiary, and no direct or indirect ownership or other interests or rights in any such Borrowing Base Subsidiary Guarantor (it being understood that no such Person shall be deemed subject to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Trust or owning any limited partnership interest in the Borrower, and if such Unencumbered Borrowing Base Property is owned Lien;
(or leasedvi) by a Subsidiary Guarantor, the Borrower’s direct and indirect interest in such Subsidiary Guarantor shall be free and clear of all Liens)[Reserved];
(vii) such Real Estate has been designated as an “Unencumbered Borrowing Base Property” on Schedule 6.31 hereto or in a Borrowing Base Property Certificate in accordance with §7.4(e) or delivered pursuant to this §7.19, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(d) or §7.19(e)[Reserved];
(viii) the number of properties included within the all Unencumbered Borrowing Base Properties shall not be will at all times have an aggregate Occupancy Rate of no less than ten eighty percent (10) and shall provide Borrowing Base Availability of not less than $200,000,000.00 80%);
(ix) the Unencumbered Borrowing Base Properties Borrower shall consist solely of have delivered to the Agent a written request to include such Eligible Real Estate which has in the calculation of Unencumbered Adjusted NOI and Unencumbered Asset Value, together with (1) a certification that such Eligible Real Estate is in compliance with the requirements of the Credit Agreement and (2) a calculation of Unencumbered Adjusted NOI and Unencumbered Asset Value attributable to such asset, and at the Agent’s request in its sole discretion, each of the following: (A) a physical description of such Eligible Real Estate, (B) a current Rent Roll and current operating statements for such Eligible Real Estate, (C) an aggregate occupancy level of tenants (excluding the Borrower or any of its Affiliates) operating and capital expenditure budget for such Eligible Real Estate in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent form and which are not otherwise in default of at least eighty percent (80%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect (provided, however, with respect substance reasonably satisfactory to the calculations set forth in this Agent, (D) a certification as to the matters covered under §7.19(a)(ix)(A) the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area of the applicable Unencumbered Borrowing Base Property when making such calculation7.17(a)(i)-(v), and (BD) an aggregate level of tenants (excluding such other information as the Borrower or any of its Affiliates) under leases in Agent may reasonably require with respect to such Unencumbered Borrowing Base Properties (Eligible Real Estate, including, but not limited to, any tenant having under lease 25,000 square feet information required by the Agent to determine the Unencumbered Asset Value attributable to such Eligible Real Estate and compliance with this §7.17 (collectively, the “Eligible Real Estate Qualification Documents”); and
(x) such Eligible Real Estate has not been removed from the calculation of Unencumbered Adjusted NOI or more on a holdover Unencumbered Asset Value pursuant to §7.17(c), §7.17(d) or month-to-month basis§7.17(e).
(b) which are paying rent and which are not in default of at least eighty-five percent (85%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower may temporarily remove an in the event any Real Estate does not qualify as Eligible Real Estate or satisfy the requirements of §7.17(a), such Real Estate shall be included in the calculation of Unencumbered Borrowing Base Property from the foregoing occupancy calculations with respect to an Adjusted NOI and Unencumbered Borrowing Base Property (x) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing Asset Value so long as a property that can be excluded from such calculation. Without limiting the foregoing, the Agent shall not be required have received the prior written consent of each of the Required Lenders to approve the removal inclusion of such property from Real Estate in the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Unencumbered Borrowing Base Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is twenty-four (24) months following the initial approval of such Adjusted NOI and Unencumbered Borrowing Base Property as a Redevelopment Property for the purposes of this §7.19;
(x) no more than ten percent (10%) of the Borrowing Base Availability of the Unencumbered Borrowing Base Properties shall be properties leased by Borrower or a Subsidiary Guarantor as the lessee or tenant under a Ground Lease; and
(xi) other than with respect to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) of the Borrowing Base Availability of all of the Unencumbered Borrowing Base PropertiesAsset Value.
(bc) In the event that all or any material portion of any Eligible Real Estate within included in the calculation of Unencumbered Borrowing Base Properties Adjusted NOI or Unencumbered Asset Value shall be materially damaged or taken by condemnation, then such Real Estate property shall no longer be a part included in the calculation of the Unencumbered Borrowing Base Properties Adjusted NOI or Unencumbered Asset Value unless and until (i) any damage to such Real Estate real estate is repaired or restored, such Real Estate real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the Operating Cash Flow value of such Real Estate real estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow value of such Real Estate real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(c) In the event that any Subsidiary of the Borrower that is not a Guarantor owns Real Estate which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only in the event that all of the terms and conditions of this §7.19(c) and §5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor;
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Guarantor;
(iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(v) The Real Estate assets acquired or owned by such Subsidiary Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder.
(d) Upon any Unencumbered Borrowing Base Property asset ceasing to qualify as an to be included in the calculation of Unencumbered Borrowing Base PropertyAdjusted NOI or Unencumbered Asset Value, such Unencumbered Borrowing Base Property asset shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5Unencumbered Adjusted NOI or Unencumbered Asset Value. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified Unencumbered Borrowing Base Propertyasset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability Unencumbered Adjusted NOI and Unencumbered Asset Value attributable to such Unencumbered Borrowing Base Propertyasset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 §9.1, 9.2 and §9.59.3.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the calculation of Unencumbered Borrowing Base Properties Adjusted NOI and Unencumbered Asset Value in its sole discretion, or upon either of the events described in clause (b) or (c) of §5.3 occurring, by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Borrowing Base Property being removed, and a calculation of the Borrowing Base Availability value attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 7.17, §8.8 and §9.5§9.1, 9.2 and 9.
(f) The Agent shall promptly notify the Lenders of the addition or removal of any Real Estate from the calculation of Unencumbered Adjusted NOI or Unencumbered Asset Value.
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Unencumbered Borrowing Base Properties. (a) The Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties shall be owned 100% in fee simple or leased under a Ground Lease by the Borrower or, subject to the terms of this Agreement, a Subsidiary Guarantor, Guarantor free and clear of all Liens other than the Liens permitted in §8.2(iiSection 8.2(i), (iii) and (v), and such Unencumbered Borrowing Base Property does not have applicable to it any restriction on the pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor with respect to any other Secured Indebtedness;
(ii) to the best of the Borrower's knowledge and belief, none of the Unencumbered Borrowing Base Properties shall have any material title, survey, environmental, structural environmental or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or refinance such property;
(iii) such Unencumbered Borrowing Base Property is managed by the Borrower or a Wholly Owned Subsidiary of the Borrower, or a third party manager approved by the Agent, such approval not to be unreasonably withheld;
(iv) prior to inclusion of Real Estate within the Unencumbered Borrowing Base PropertiesProperty, Borrower shall have delivered to Agent a physical description of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.5 and compliance with this §7.19;
(viv) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) Retail Center approved by the Majority Banks and is consistent with Borrower’s 's business strategy on the date of this AgreementAgreement or, subject to the approval of the Majority Banks, an income producing operating property that is utilized principally for office or self-storage uses, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect;; and
(vi) no Person other than Borrower or a Subsidiary Guarantor has any direct or indirect ownership of any equity interest or other Voting Interest in such Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Subsidiary Guarantor (it being understood that no such Person shall be deemed to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Trust or owning any limited partnership interest in the Borrower, and if such Unencumbered Borrowing Base Property is owned (or leased) by a Subsidiary Guarantor, the Borrower’s direct and indirect interest in such Subsidiary Guarantor shall be free and clear of all Liens);
(vii) such Real Estate has been designated as an “Unencumbered Borrowing Base Property” on Schedule 6.31 hereto or in a Borrowing Base Property Certificate in accordance with §7.4(e) or delivered pursuant to this §7.19, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(d) or §7.19(e);
(viiiv) the number of properties included within the Unencumbered Borrowing Base Properties shall not be less than ten (10) ), and the Majority Banks shall be required to provide their prior approval of the removal of any property as an Unencumbered Borrowing Base Availability of not less than $200,000,000.00 Property;
(ixvi) the each Unencumbered Borrowing Base Properties Property shall consist solely of Real Estate which has (A) an aggregate occupancy level of tenants (excluding the Borrower or any of its Affiliates) in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent ) and operating and which are not otherwise no more than thirty (30) days in default of at least eighty eighty-five percent (8085%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties Property for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect (provided, however, with respect to that in the calculations set forth in this §7.19(a)(ix)(A) event that the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area occupancy level of the applicable a Property that has been accepted as an Unencumbered Borrowing Base Property when making shall fall below such calculationthreshold, such property shall not be required to be removed as an Unencumbered Borrowing Base Property in the event that the occupancy level satisfies the foregoing test within six (6) months after the close of the fiscal quarter in which such property first fell below such threshold); and
(vii) no more than twenty percent (20%) of the Borrowing Base (based upon the Asset Value of the Unencumbered Borrowing Base Properties), and other than the Unencumbered Borrowing Base Property commonly known as Pentagon City, shall be located in any single metropolitan area;
(Bviii) an aggregate level no one office or retail tenant shall comprise more than ten percent (10%) (twenty percent (20%) if the tenant has a Rating of tenants BBB- or better from S&P or Baa3 or better from Xxxxx'x) of the Net Operating Income generated by the Unencumbered Borrowing Base Properties within the Borrowing Base;
(excluding ix) no Unencumbered Borrowing Base Property (based upon the Borrower or any Asset Value of its Affiliatesthe Unencumbered Borrowing Base Properties), other than the Unencumbered Borrowing Base Property commonly known as Pentagon City, shall comprise more than fifteen percent (15%) under leases in such of the Borrowing Base; and
(x) the Unencumbered Borrowing Base Properties (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis) which are paying rent and which are not in default of at least eighty-five percent (85%) based upon the Asset Value of the Net Rentable Area within such Unencumbered Borrowing Base Properties for Properties) owned by the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower may temporarily remove an Unencumbered Borrowing Base Property from the foregoing occupancy calculations with respect to an Unencumbered Borrowing Base Property (x) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing as a property that can be excluded from such calculation. Without limiting the foregoing, the Agent Guarantors shall not be required to approve the removal of such property from the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Unencumbered Borrowing Base Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is twenty-four (24) months following the initial approval of such Unencumbered Borrowing Base Property as a Redevelopment Property for the purposes of this §7.19;
(x) no more than exceed ten percent (10%) of the Borrowing Base Availability of the Unencumbered Borrowing Base Properties shall be properties leased by Borrower or a Subsidiary Guarantor as the lessee or tenant under a Ground Lease; and
(xi) other than with respect to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) of the Borrowing Base Availability of all of the Unencumbered Borrowing Base PropertiesBase.
(b) In the event that all or any material portion of any Real Estate a property within the Unencumbered Borrowing Base Properties shall be damaged or taken by condemnation, then such Real Estate property shall no longer be a part of the Unencumbered Borrowing Base Properties unless and until (i) any damage to such Real Estate is repaired or restored, such Real Estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the value and Net Operating Cash Flow Income of such Real Estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow of such Real Estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnationrestoration.
(c) In the event that any Subsidiary of the Borrower that is not a Guarantor owns Real Estate which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only in the event that all of the terms and conditions of this §7.19(cSection 7.13(c) and §5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary an Additional Guarantor;
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Additional Guarantor;
(iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary an Additional Guarantor or acquires such assets; and
(v) The Real Estate assets acquired or owned by such Subsidiary Additional Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder, and such assets, when taken together with the other Real Estate assets owned by the Guarantors, shall not exceed ten percent (10%) of the total Asset Value of the Unencumbered Borrowing Base Properties.
(d) Upon any Unencumbered Borrowing Base Property ceasing to qualify Notwithstanding the terms of Section 7.13(a)(iv)(B), the Real Estate commonly known as Maple Shade may be admitted as an Unencumbered Borrowing Base Property, such Unencumbered Borrowing Base Property shall no longer be included in without the calculation approval of the Borrowing Base Availability nor shall the Operating Cash Flow from Majority Banks at such property be included time as Xxxx'x Home Centers, Inc. has executed a lease for the purposes of §9.5. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity all of the disqualified Unencumbered Borrowing Base Property, a statement as to whether any Default or Event vacant improvements thereon and commenced the payment of Default arises as a result of such disqualificationrent thereunder, and a calculation provided that the other provisions of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5this Section 7.13 are satisfied.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the Unencumbered Borrowing Base Properties by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Borrowing Base Property being removed, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5.
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Unencumbered Borrowing Base Properties. (a) The Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties shall be owned 100% in fee simple or leased under a Ground Lease by the Borrower or, subject to the terms of this Agreement, a Subsidiary Guarantor, Guarantor free and clear of all Liens other than the Liens permitted in §8.2(iiss.8.2(i), (iii) and (v), and such Unencumbered Borrowing Base Property does not have applicable to it any restriction on the pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor with respect to any other Secured Indebtedness;
(ii) to the best of the Borrower's knowledge and belief, none of the Unencumbered Borrowing Base Properties shall have any material title, survey, environmental, structural environmental or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or refinance such property;
(iii) such Unencumbered Borrowing Base Property is managed by the Borrower or a Wholly Owned Subsidiary of the Borrower, or a third party manager approved by the Agent, such approval not to be unreasonably withheld;
(iv) prior to inclusion of Real Estate within the Unencumbered Borrowing Base PropertiesProperty, Borrower shall have delivered to Agent a physical description such of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information items described on Schedule 7.13 hereto as Agent may reasonably require to determine request (it being agreed that Agent may also at any time following the value attributable to such inclusion of Real Estate for within the purposes of §9.5 and compliance with this §7.19Unencumbered Borrowing Base Property request that Borrower deliver to Agent any items described on Schedule 7.13 hereto available to Borrower which have not previously been delivered to Agent);
(viv) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is Office Property consistent with Borrower’s 's business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect;
(vi) no Person other than Borrower or a Subsidiary Guarantor has any direct or indirect ownership of any equity interest or other Voting Interest in such Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Subsidiary Guarantor (it being understood that no such Person shall be deemed to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Trust or owning any limited partnership interest in the Borrower, and if such Unencumbered Borrowing Base Property is owned (or leased) by a Subsidiary Guarantor, the Borrower’s direct and indirect interest in such Subsidiary Guarantor shall be free and clear of all Liens);
(vii) such Real Estate has been designated as an “Unencumbered Borrowing Base Property” on Schedule 6.31 hereto or in a Borrowing Base Property Certificate in accordance with §7.4(e) or delivered pursuant to this §7.19, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(d) or §7.19(e);
(viiiv) the number of properties included within the Unencumbered Borrowing Base Properties shall not be less than ten (10) ), and the Majority Banks shall be required to provide their prior approval of the removal of any property as an Unencumbered Borrowing Base Availability of not less than $200,000,000.00 Property;
(ixvi) the each Unencumbered Borrowing Base Properties Property shall consist solely of Real Estate which has (A) an aggregate occupancy level of tenants (excluding the Borrower or any of its Affiliates) in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent and which are not otherwise in default operating of at least eighty ninety percent (8090%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties Property for the previous two fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect (provided, however, with respect to the calculations set forth in this §7.19(a)(ix)(A) the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area of the applicable Unencumbered Borrowing Base Property when making such calculation), and (B) an aggregate level of tenants (excluding the Borrower or any of its Affiliates) under leases in such Unencumbered Borrowing Base Properties (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis) which are paying rent and which are not in default of at least eighty-five percent (85%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter quarters of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding ;
(vii) no more than thirty percent (30%) of the foregoing, Borrower may temporarily remove an Borrowing Base (based upon the Asset Value of the Unencumbered Borrowing Base Property from the foregoing occupancy calculations with respect to an Unencumbered Borrowing Base Property (xProperties) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing as a property that can be excluded from such calculation. Without limiting the foregoing, the Agent shall not be required to approve the removal of such property from the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Unencumbered Borrowing Base Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is twenty-four located in any single metropolitan area (24) months following the initial approval of such Unencumbered Borrowing Base Property as a Redevelopment Property for the purposes of this §7.19determined by Agent in its good faith judgment);
(xviii) no one office or retail tenant shall comprise more than ten percent (10%) of the Borrowing Base Availability of Net Operating Income generated by the Unencumbered Borrowing Base Properties shall be properties leased by Borrower or a Subsidiary Guarantor as within the lessee or tenant under a Ground Lease; andBorrowing Base;
(xiix) other than with respect to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) of based upon the Borrowing Base Availability of all Asset Value of the Unencumbered Borrowing Base Properties) shall comprise more than twenty percent (20%) of the Borrowing Base; and
(x) the Unencumbered Borrowing Base Properties (based upon the Asset Value of the Unencumbered Borrowing Base Properties) owned by the Guarantors shall not exceed twenty percent (20%) of the Borrowing Base.
(b) In the event that all or any material portion of any Real Estate a property within the an Unencumbered Borrowing Base Properties Property shall be damaged or taken by condemnation, then such Real Estate property shall no longer be a part of the Unencumbered Borrowing Base Properties unless and until (i) any damage to such Real Estate is repaired or restored, such Real Estate becomes fully operational and operational, the Agent shall receive evidence satisfactory to the Agent of the value and Net Operating Cash Flow Income of such Real Estate following such repair or restoration (both at such time restoration, and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow of such Real Estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnationotherwise satisfies the requirements of the Agreement applicable to Unencumbered Borrowing Base Properties.
(c) In the event that any Subsidiary of the Borrower that is not a Guarantor owns Real Estate which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only in the event that all of the terms and conditions of this §7.19(css.7.13(c) and §5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary an Additional Guarantor;
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Additional Guarantor;
(iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary an Additional Guarantor or acquires such assets; and
(v) The Real Estate assets acquired or owned by such Subsidiary Additional Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder.
(d) Upon any Unencumbered Borrowing Base Property ceasing to qualify as an Unencumbered Borrowing Base Property, and such Unencumbered Borrowing Base Property shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5. Within five (5) Business Days after any such disqualificationassets, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, when taken together with the identity other Real Estate assets owned by the Guarantors, shall not exceed twenty percent (20%) of the disqualified Unencumbered Borrowing Base Property, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the Unencumbered Borrowing Base Properties by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity total Asset Value of the Unencumbered Borrowing Base Property being removed, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5Properties.
Appears in 1 contract
Unencumbered Borrowing Base Properties. (a) The Subject to clause (b) of this §7.17, the Eligible Real Estate included in the calculation of the Borrowing Base Availability and inclusion as Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties Eligible Real Estate shall be owned one hundred percent (100% %) in fee simple or leased under a Ground Lease by the Borrower orBorrower, subject to the terms of this Agreement, REIT or a Subsidiary Guarantor, free and clear of all Liens other than the Liens permitted in §8.2(ii) 8.2(i)A and (viii), and such Unencumbered Borrowing Base Property does Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor with respect to any other Secured Indebtedness;
(ii) none of the Unencumbered Borrowing Base Properties Eligible Real Estate shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or refinance finance such property;
(iii) if such Real Estate is owned by a Subsidiary Guarantor, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Borrowing Base Availability and inclusion as Unencumbered Borrowing Base Property is managed by the Borrower or a Wholly Owned Subsidiary of the Borrower, or a third party manager approved by the Agent, such approval not to be unreasonably withheldProperties and related fixtures and personal property;
(iv) prior to inclusion of Real Estate within the Unencumbered Borrowing Base Properties, Borrower shall have delivered to Agent a physical description of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.5 and compliance with this §7.19is managed by Manager;
(v) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is consistent with Borrower’s business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect;
(vi) no Person other than the Borrower (or a Subsidiary Guarantor as provided in clause (e) of the definition of Change of Control, Borrower and REIT) has any direct or indirect ownership of any equity legal, equitable or beneficial interest or other Voting Interest in such Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Subsidiary Guarantor (it being understood that no such Person shall be deemed to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Trust or owning any limited partnership interest in the BorrowerGuarantor, and if such Unencumbered Borrowing Base Property is owned (no direct or leased) by a Subsidiary Guarantor, the Borrower’s direct and indirect interest ownership or other interests or rights in any such Subsidiary Guarantor shall be free and clear subject to any Lien;
(vi) the Unencumbered Borrowing Base Properties included in the calculation of Borrowing Base Availability shall at all Liens)times have an aggregate Unencumbered Asset Value of not less than $250,000,000.00;
(vii) such Real Estate has been designated as an “there shall be at all times at least ten (10) Unencumbered Borrowing Base Property” on Schedule 6.31 hereto or Properties included in a the calculation of the Borrowing Base Property Certificate in accordance with §7.4(e) or delivered pursuant to this §7.19, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(d) or §7.19(e)Availability;
(viii) the number of properties included within the all Unencumbered Borrowing Base Properties shall not be will at all times have an aggregate Occupancy Rate of no less than ten eighty percent (10) and shall provide Borrowing Base Availability of not less than $200,000,000.00 80%);
(ix) the Unencumbered Borrowing Base Properties Borrower shall consist solely of Real Estate which has have delivered to the Agent (A) an aggregate occupancy level of tenants (excluding a written request to include such Eligible Real Estate in the Borrower or any of its Affiliates) in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent and which are not otherwise in default of at least eighty percent (80%) calculation of the Net Rentable Area within such Unencumbered Borrowing Base Properties Availability, (B) a physical description of such Eligible Real Estate, (C) a current Rent Roll and current operating statements for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments such Eligible Real Estate, (D) an operating and which are capital expenditure budget for such Eligible Real Estate in full force form and effect (provided, however, with respect substance reasonably satisfactory to the calculations set forth in this Agent, (E) a certification as to the matters covered under §7.19(a)(ix)(A) the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area of the applicable Unencumbered Borrowing Base Property when making such calculation7.17(a)(i)-(v), and (BF) an aggregate level of tenants (excluding such other information as the Borrower or any of its Affiliates) under leases in such Unencumbered Borrowing Base Properties (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis) which are paying rent and which are not in default of at least eighty-five percent (85%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower Agent may temporarily remove an Unencumbered Borrowing Base Property from the foregoing occupancy calculations reasonably require with respect to an such Eligible Real Estate, including, but not limited to, any information required by the Agent to determine the Unencumbered Borrowing Base Property Asset Value attributable to such Eligible Real Estate and compliance with this §7.17 (x) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing as a property that can be excluded from such calculation. Without limiting the foregoingcollectively, the Agent shall not be required to approve the removal of such property from the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Unencumbered Borrowing Base Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is twenty-four (24) months following the initial approval of such Unencumbered Borrowing Base Property as a Redevelopment Property for the purposes of this §7.19;“Eligible Real Estate Qualification Documents”); and
(x) no more than ten percent (10%) such Eligible Real Estate has not been removed from the calculation of the Borrowing Base Availability pursuant to §7.17(c), §7.17(d) or §7.17(e).
(b) Notwithstanding the foregoing, in the event any Real Estate does not qualify as Eligible Real Estate or satisfy the requirements of the Unencumbered Borrowing Base Properties §7.17(a), such Real Estate shall be properties leased by Borrower or a Subsidiary Guarantor as included in the lessee or tenant under a Ground Lease; and
(xi) other than with respect to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) calculation of the Borrowing Base Availability so long as the Agent shall have received the prior written consent of all each of the Unencumbered Required Lenders to the inclusion of such Real Estate in the calculation of the Borrowing Base PropertiesAvailability.
(bc) In the event that all or any material portion of any Eligible Real Estate within included in the Unencumbered calculation of the Borrowing Base Properties Availability shall be materially damaged or taken by condemnation, then such Real Estate property shall no longer be a part included in the calculation of the Unencumbered Borrowing Base Properties Availability unless and until (i) any damage to such Real Estate real estate is repaired or restored, such Real Estate real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the Operating Cash Flow value of such Real Estate real estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow value of such Real Estate real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(c) In the event that any Subsidiary of the Borrower that is not a Guarantor owns Real Estate which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only in the event that all of the terms and conditions of this §7.19(c) and §5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor;
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Guarantor;
(iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(v) The Real Estate assets acquired or owned by such Subsidiary Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder.
(d) Upon any Unencumbered Borrowing Base Property asset ceasing to qualify as an Unencumbered to be included in the calculation of the Borrowing Base PropertyAvailability, such Unencumbered Borrowing Base Property asset shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5Availability. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified Unencumbered Borrowing Base Propertyasset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Propertyasset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Borrowing Base Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 §9.1, 9.2 and §9.59.3.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the Unencumbered calculation of the Borrowing Base Properties Availability in its sole discretion, or upon either of the events described in clause (b) or (c) of §5.3 occurring, by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Borrowing Base Property being removed, and a calculation of the Borrowing Base Availability value attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Borrowing Base Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 7.17, §8.8 and §9.5§9.1, 9.2 and 9.
(f) The Agent shall promptly notify the Lenders of the addition or removal of any Real Estate from the calculation of the Borrowing Base Availability.
Appears in 1 contract
Samples: Term Loan Agreement (Mid America Apartment Communities Inc)
Unencumbered Borrowing Base Properties. (a) The Subject to clause (b) of this §7.17, the Eligible Real Estate included in the calculation of the Borrowing Base Availability and inclusion as Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties Eligible Real Estate shall be owned one hundred percent (100% %) in fee simple or leased under a Ground Lease by the Borrower orBorrower, subject to the terms of this Agreement, REIT or a Subsidiary Guarantor, free and clear of all Liens other than the Liens permitted in §8.2(ii) 8.2(i)A and (viii), and such Unencumbered Borrowing Base Property does Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor with respect to any other Secured Indebtedness;
(ii) none of the Unencumbered Borrowing Base Properties Eligible Real Estate shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or refinance finance such property;
(iii) if such Real Estate is owned by a Subsidiary Guarantor, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Borrowing Base Availability and inclusion as Unencumbered Borrowing Base Property is managed by the Borrower or a Wholly Owned Subsidiary of the Borrower, or a third party manager approved by the Agent, such approval not to be unreasonably withheldProperties and related fixtures and personal property;
(iv) prior to inclusion of Real Estate within the Unencumbered Borrowing Base Properties, Borrower shall have delivered to Agent a physical description of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.5 and compliance with this §7.19is managed by Manager;
(v) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is consistent with Borrower’s business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect;
(vi) no Person other than the Borrower (or a Subsidiary Guarantor as provided in clause (e) of the definition of Change of Control, Borrower and REIT) has any direct or indirect ownership of any equity legal, equitable or beneficial interest or other Voting Interest in such Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Subsidiary Guarantor (it being understood that no such Person shall be deemed to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Trust or owning any limited partnership interest in the BorrowerGuarantor, and if such Unencumbered Borrowing Base Property is owned (no direct or leased) by a Subsidiary Guarantor, the Borrower’s direct and indirect interest ownership or other interests or rights in any such Subsidiary Guarantor shall be free and clear subject to any Lien;
(vi) the Unencumbered Borrowing Base Properties included in the calculation of Borrowing Base Availability shall at all Liens)times have an aggregate Unencumbered Asset Value of not less than $250,000,000.00;
(vii) such Real Estate has been designated as an “there shall be at all times at least ten (10) Unencumbered Borrowing Base Property” on Schedule 6.31 hereto or Properties included in a the calculation of the Borrowing Base Property Certificate in accordance with §7.4(e) or delivered pursuant to this §7.19, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(d) or §7.19(e)Availability;
(viii) the number of properties included within the all Unencumbered Borrowing Base Properties shall not be will at all times have an aggregate Occupancy Rate of no less than ten eighty percent (10) and shall provide Borrowing Base Availability of not less than $200,000,000.00 80%);
(ix) the Unencumbered Borrowing Base Properties Borrower shall consist solely of Real Estate which has have delivered to the Agent (A) an aggregate occupancy level of tenants (excluding a written request to include such Eligible Real Estate in the Borrower or any of its Affiliates) in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent and which are not otherwise in default of at least eighty percent (80%) calculation of the Net Rentable Area within such Unencumbered Borrowing Base Properties Availability, (B) a physical description of such Eligible Real Estate, (C) a current Rent Roll and current operating statements for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments such Eligible Real Estate, (D) an operating and which are capital expenditure budget for such Eligible Real Estate in full force form and effect (provided, however, with respect substance reasonably satisfactory to the calculations set forth in this Agent, (E) a certification as to the matters covered under §7.19(a)(ix)(A) the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area of the applicable Unencumbered Borrowing Base Property when making such calculation7.17(a)(i)-(v), and (BF) an aggregate level of tenants (excluding such other information as the Borrower or any of its Affiliates) under leases in such Unencumbered Borrowing Base Properties (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis) which are paying rent and which are not in default of at least eighty-five percent (85%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower Agent may temporarily remove an Unencumbered Borrowing Base Property from the foregoing occupancy calculations reasonably require with respect to an such Eligible Real Estate, including, but not limited to, any information required by the Agent to determine the Unencumbered Borrowing Base Property Asset Value attributable to such Eligible Real Estate and compliance with this §7.17 (x) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing as a property that can be excluded from such calculation. Without limiting the foregoingcollectively, the Agent shall not be required to approve the removal of such property from the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Unencumbered Borrowing Base Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is twenty-four (24) months following the initial approval of such Unencumbered Borrowing Base Property as a Redevelopment Property for the purposes of this §7.19;“Eligible Real Estate Qualification Documents”); and
(x) no more than ten percent (10%) such Eligible Real Estate has not been removed from the calculation of the Borrowing Base Availability pursuant to §7.17(c), §7.17(d) or §7.17(e).
(b) Notwithstanding the foregoing, in the event any Real Estate does not qualify as Eligible Real Estate or satisfy the requirements of the Unencumbered Borrowing Base Properties §7.17(a), such Real Estate shall be properties leased by Borrower or a Subsidiary Guarantor as included in the lessee or tenant under a Ground Lease; and
(xi) other than with respect to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) calculation of the Borrowing Base Availability so long as the Agent shall have received the prior written consent of all each of the Unencumbered Required Lenders to the inclusion of such Real Estate in the calculation of the Borrowing Base PropertiesAvailability.
(bc) In the event that all or any material portion of any Eligible Real Estate within included in the Unencumbered calculation of the Borrowing Base Properties Availability shall be materially damaged or taken by condemnation, then such Real Estate property shall no longer be a part included in the calculation of the Unencumbered Borrowing Base Properties Availability unless and until (i) any damage to such Real Estate real estate is repaired or restored, such Real Estate real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the Operating Cash Flow value of such Real Estate real estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow value of such Real Estate real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(c) In the event that any Subsidiary of the Borrower that is not a Guarantor owns Real Estate which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only in the event that all of the terms and conditions of this §7.19(c) and §5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor;
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Guarantor;
(iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(v) The Real Estate assets acquired or owned by such Subsidiary Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder.
(d) Upon any Unencumbered Borrowing Base Property asset ceasing to qualify as an Unencumbered to be included in the calculation of the Borrowing Base PropertyAvailability, such Unencumbered Borrowing Base Property asset shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5Availability. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified Unencumbered Borrowing Base Propertyasset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such Unencumbered Borrowing Base Propertyasset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Borrowing Base Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 §9.1, 9.2 and §9.59.3.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the Unencumbered calculation of the Borrowing Base Properties Availability in its sole discretion, or upon either of the events described in clause (b) or (c) of §5.3 occurring, by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Borrowing Base Property being removed, and a calculation of the Borrowing Base Availability value attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Borrowing Base Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 7.17, §8.8 and §9.5§9.1, 9.2 and 9.3.
(f) The Agent shall promptly notify the Lenders of the addition or removal of any Real Estate from the calculation of the Borrowing Base Availability.
Appears in 1 contract
Samples: Credit Agreement (Mid America Apartment Communities Inc)
Unencumbered Borrowing Base Properties. (a) The Subject to clause (b) of this §7.17, the Eligible Real Estate included in the calculation of the Borrowing Base Availability, Unencumbered Adjusted NOI, and Unencumbered Asset Value and inclusion as Unencumbered Borrowing Base Properties shall at all times satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties Eligible Real Estate shall be owned one hundred percent (100% %) in fee simple or leased under a Ground Lease by the Borrower, REIT or a Wholly Owned Subsidiary of Borrower or(or as permitted in clause (e) of the definition of Change of Control, subject to the terms of this AgreementBorrower and REIT) (such Subsidiary, a Subsidiary Guarantor“Borrowing Base Subsidiary”), free and clear of all Liens other than the Liens permitted in §8.2(ii8.2(i)(A) and (viii), and such Unencumbered Borrowing Base Property does Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documentsdocuments but excluding any such limitations permitted pursuant to the last sentence of §7.12(a). If such Unencumbered Borrowing Base Property is owned or leased by a Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower or guarantor with respect to any other Secured Indebtedness);
(ii) none of the Unencumbered Borrowing Base Properties Eligible Real Estate shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or refinance finance such property, other than the restrictions on sale set forth in Section 6.11 of the Borrower’s Second Amended and Restated Limited Partnership Agreement as in effect on the date of this Agreement with respect to Park Estate and Reserve at Dexter Lake;
(iii) if such Real Estate is owned by a Borrowing Base Subsidiary (other than Colonial LP), the only assets of such Borrowing Base Subsidiary shall be Eligible Real Estate included in the calculation of the Borrowing Base Availability, Unencumbered Adjusted NOI, and Unencumbered Asset Value and inclusion as Unencumbered Borrowing Base Property Properties and related fixtures and personal property;
(iv) if multifamily Real Estate, such Real Estate is managed by Manager;
(v) no Person other than the Borrower Borrower, or a direct or indirect Wholly Owned Subsidiary of the Borrower, Borrower (or a third party manager approved by as provided in clause (e) of the Agent, such approval not to be unreasonably withheld;
(iv) prior to inclusion definition of Real Estate within the Unencumbered Borrowing Base PropertiesChange of Control, Borrower shall have delivered to Agent a physical description of the Real Estate and current rent rolls, operating statements and an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.5 and compliance with this §7.19;
(vREIT) each of the Unencumbered Borrowing Base Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is consistent with Borrower’s business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect;
(vi) no Person other than Borrower or a Subsidiary Guarantor has any direct or indirect ownership of any equity legal, equitable or beneficial interest or other Voting Interest in such Borrowing Base Subsidiary Guarantor if such Unencumbered Borrowing Base Property is owned or leased under a Ground Lease by a Borrowing Base Subsidiary, and no direct or indirect ownership or other interests or rights in any such Borrowing Base Subsidiary Guarantor (it being understood that no such Person shall be deemed subject to have any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in Lien;
(vi) the Trust or owning any limited partnership interest in the Borrower, and if such Unencumbered Borrowing Base Property is owned (or leased) by a Subsidiary GuarantorProperties included in the calculation of Borrowing Base Availability, the Borrower’s direct Unencumbered Adjusted NOI, and indirect interest in such Subsidiary Guarantor Unencumbered Asset Value shall be free and clear at all times have an aggregate Unencumbered Asset Value of all Liens)not less than $250,000,000.00;
(vii) such Real Estate has been designated as an “there shall be at all times at least ten (10) Unencumbered Borrowing Base Property” on Schedule 6.31 hereto or Properties included in a the calculation of the Borrowing Base Property Certificate in accordance with §7.4(e) or delivered pursuant to this §7.19Availability, Unencumbered Adjusted NOI, and in any event has not been removed as an Unencumbered Borrowing Base Property pursuant to §7.19(d) or §7.19(e)Asset Value;
(viii) the number of properties included within the all Unencumbered Borrowing Base Properties shall not be will at all times have an aggregate Occupancy Rate of no less than ten eighty percent (10) and shall provide Borrowing Base Availability of not less than $200,000,000.00 80%);
(ix) the Unencumbered Borrowing Base Properties Borrower shall consist solely of Real Estate which has have delivered to the Agent (A) an aggregate occupancy level of tenants (excluding a written request to include such Eligible Real Estate in the Borrower or any of its Affiliates) in possession (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis), operating, paying rent and which are not otherwise in default of at least eighty percent (80%) calculation of the Net Rentable Area within such Unencumbered Borrowing Base Properties Availability, Unencumbered Adjusted NOI, and Unencumbered Asset Value, (B) a physical description of such Eligible Real Estate, (C) a current Rent Roll and current operating statements for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments such Eligible Real Estate, (D) an operating and which are capital expenditure budget for such Eligible Real Estate in full force form and effect (provided, however, with respect substance reasonably satisfactory to the calculations set forth in this Agent, (E) a certification as to the matters covered under §7.19(a)(ix)(A) the Net Rentable Area for any tenants which have more than 10,000 square feet under lease and which have vacated their space shall be excluded from the total Net Rentable Area of the applicable Unencumbered Borrowing Base Property when making such calculation7.17(a)(i)-(v), and (BF) an aggregate level such other information as the Agent may reasonably require with respect to such Eligible Real Estate, including, but not limited to, any information required by the Agent to determine the Unencumbered Asset Value attributable to such Eligible Real Estate and compliance with this §7.17 (collectively, the “Eligible Real Estate Qualification Documents”); and
(x) such Eligible Real Estate has not been removed from the calculation of tenants (excluding the Borrower or any of its Affiliates) under leases in such Unencumbered Borrowing Base Properties Availability, Unencumbered Adjusted NOI, or Unencumbered Asset Value pursuant to §7.17(c), §7.17(d) or §7.17(e).
(but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basisb) which are paying rent and which are not in default of at least eighty-five percent (85%) of the Net Rentable Area within such Unencumbered Borrowing Base Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower may temporarily remove an Unencumbered Borrowing Base Property from in the foregoing occupancy calculations with respect to an Unencumbered Borrowing Base Property (x) that is a Redevelopment Propertyevent any Real Estate does not qualify as Eligible Real Estate or satisfy the requirements of §7.17(a), (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing as a property that can be excluded from such calculation. Without limiting the foregoing, the Agent shall not be required to approve the removal of such property from the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Unencumbered Borrowing Base Property. Such property Real Estate shall be excluded from included in the foregoing occupancy calculations until the date that is twenty-four (24) months following the initial approval of such Unencumbered Borrowing Base Property as a Redevelopment Property for the purposes of this §7.19;
(x) no more than ten percent (10%) calculation of the Borrowing Base Availability Availability, Unencumbered Adjusted NOI, and Unencumbered Asset Value so long as the Agent shall have received the prior written consent of each of the Unencumbered Borrowing Base Properties shall be properties leased by Borrower or a Subsidiary Guarantor as the lessee or tenant under a Ground Lease; and
(xi) other than with respect Required Lenders to the Unencumbered Borrowing Base Property commonly known as Tel-Twelve located inclusion of such Real Estate in Southfield, Michigan, no Unencumbered Borrowing Base Property shall contribute more than ten percent (10%) the calculation of the Borrowing Base Availability of all of the Availability, Unencumbered Borrowing Base PropertiesAdjusted NOI, and Unencumbered Asset Value.
(bc) In the event that all or any material portion of any Eligible Real Estate within included in the Unencumbered calculation of the Borrowing Base Properties Availability, Unencumbered Adjusted NOI, or Unencumbered Asset Value shall be materially damaged or taken by condemnation, then such Real Estate property shall no longer be a part included in the calculation of the Unencumbered Borrowing Base Properties Availability, Unencumbered Adjusted NOI, or Unencumbered Asset Value unless and until (i) any damage to such Real Estate real estate is repaired or restored, such Real Estate real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the Operating Cash Flow value of such Real Estate real estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow value of such Real Estate real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(c) In the event that any Subsidiary of the Borrower that is not a Guarantor owns Real Estate which would otherwise qualify as an Unencumbered Borrowing Base Property and the Borrower desires for the same to become an Unencumbered Borrowing Base Property, then such property may become an Unencumbered Borrowing Base Property but only in the event that all of the terms and conditions of this §7.19(c) and §5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor;
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall specifically authorize such Subsidiary to guaranty the Obligations and to pledge the assets of such Subsidiary as security for the Obligations and the Borrower shall certify to the Agent that applicable law does not preclude such Subsidiary from executing such guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct with respect to such Subsidiary Guarantor;
(iv) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(v) The Real Estate assets acquired or owned by such Subsidiary Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder.
(d) Upon any Unencumbered Borrowing Base Property asset ceasing to qualify as an Unencumbered to be included in the calculation of the Borrowing Base PropertyAvailability, Unencumbered Adjusted NOI, or Unencumbered Asset Value, such Unencumbered Borrowing Base Property asset shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5Availability, Unencumbered Adjusted NOI, or Unencumbered Asset Value. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified Unencumbered Borrowing Base Propertyasset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability Availability, Unencumbered Adjusted NOI, and Unencumbered Asset Value attributable to such Unencumbered Borrowing Base Propertyasset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Borrowing Base Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 §9.1, 9.2 and §9.59.3.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the Unencumbered calculation of the Borrowing Base Properties Availability, Unencumbered Adjusted NOI, and Unencumbered Asset Value in its sole discretion, or upon either of the events described in clause (b) or (c) of §5.3 occurring, by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Borrowing Base Property being removed, and a calculation of the Borrowing Base Availability value attributable to such Unencumbered Borrowing Base Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Borrowing Base Certificate demonstrating, after giving effect to such removal, replacement removal or disqualification, compliance with the covenants contained in §7.19 7.17, §8.8 and §9.5§9.1, 9.2 and 9.3.
(f) The Agent shall promptly notify the Lenders of the addition or removal of any Real Estate from the calculation of the Borrowing Base Availability, Unencumbered Adjusted NOI, or Unencumbered Asset Value.
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Samples: Credit Agreement (Mid America Apartment Communities Inc)
