Unencumbered Pool Properties. Schedule 5.27 is, in all material respects, a true and complete list of (i) the street address of each Unencumbered Pool Property, (ii) the Unencumbered Property Owner which owns or leases, pursuant to an Eligible Ground Lease, each such Unencumbered Pool Property, (iii) the facility type of each such Unencumbered Pool Property, (iv) the name and address of the Approved Manager with respect to such Unencumbered Pool Property (if such Unencumbered Pool Property is managed by a third-party property manager), and (iv) the Tenant Leases to which each such Unencumbered Pool Property is subject, together with the name of the applicable Tenants thereunder. Each parcel of real property identified on Schedule 5.27 is a Real Estate Asset that qualifies as an Unencumbered Pool Property pursuant to the terms hereof. To the extent any such Unencumbered Pool Property is leased by an Unencumbered Property Owner pursuant to an Eligible Ground Lease, (i) such Eligible Ground Lease is in full force and effect and remains unmodified except to the extent expressly permitted by Section 9.12; (ii) except as expressly permitted by Section 9.12, no rights in favor of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.12, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default with respect to such Eligible Ground Lease that has not been delivered to holders of the Notes pursuant to Section 9.12; (vi) to the knowledge of the Unencumbered Property Owners, the ground lessor under such Eligible Ground Lease is not in default with respect to its material obligations thereunder; (vii) a true and correct copy of such Eligible Ground Lease (together with any amendments, modifications, restatements or supplements thereof) has been delivered to the holders of the Notes and (viii) there exist no adverse claims as
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Physicians Realty Trust)
Unencumbered Pool Properties. Schedule 5.27 is, in (a) The Unencumbered Pool Properties shall at all material respects, a true and complete list of (i) times satisfy the street address of each condition that such Real Estate has been designated as an “Unencumbered Pool Property, (ii” on Schedule 1 hereto or in a Compliance Certificate in accordance with Section 6.1(v) the Unencumbered Property Owner which owns or leases, delivered pursuant to an Eligible Ground Lease, each such Unencumbered Pool Property, (iii) the facility type of each such Unencumbered Pool Property, (iv) the name and address of the Approved Manager with respect to such Unencumbered Pool Property (if such Unencumbered Pool Property is managed by a third-party property manager)this Section, and (iv) the Tenant Leases to which each such Unencumbered Pool Property is subject, together with the name of the applicable Tenants thereunder. Each parcel of real property identified on Schedule 5.27 is a Real Estate Asset that qualifies in any event has not been removed as an Unencumbered Pool Property pursuant to Section 6.29(c) or (d).
(b) In the event that any Subsidiary of the Borrower owns a Project which would otherwise qualify as an Unencumbered Pool Property and the Borrower desires for the same to become an Unencumbered Pool Property, then such property may become an Unencumbered Pool Property but only in the event that all of the terms hereof. To and conditions of this Section 6.29(b) and Section 6.26 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor (if required by this Agreement);
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall, if such Subsidiary is required to be a Subsidiary Guarantor by this Agreement, specifically authorize such Subsidiary to guaranty the extent 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;
(iv) No Default or Unmatured Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such asset or such asset becomes an Unencumbered Pool Property; and
(v) The Project acquired or owned by such Subsidiary shall qualify as a Qualifying Unencumbered Pool Property hereunder.
(c) Upon any Unencumbered Pool Property ceasing to qualify as an Unencumbered Pool Property, such Unencumbered Pool Property is leased by an shall no longer be included in the calculation of the Unencumbered Property Owner pursuant to an Eligible Ground LeasePool Value nor shall its Net Operating Income be included for purposes of determining compliance with Section 6.21(iv). Within five (5) Business days after any such disqualification, (i) such Eligible Ground Lease is in full force and effect and remains unmodified except the Borrower shall deliver to the extent expressly permitted by Section 9.12; (ii) except as expressly permitted by Section 9.12Administrative Agent a certificate reflecting such disqualification, no rights in favor together with the identity of the applicable disqualified Unencumbered Property Owner lessee have been waivedPool Property, canceled a statement as to whether any Default or surrendered; (iii) except Unmatured Default arises as expressly permitted by Section 9.12a result of such disqualification, no election or option under such Eligible Ground Lease has been exercised by and a calculation of the Unencumbered Property Owner ground lessee (other than options Pool Value and Net Operating Income attributable to renew or extend such Unencumbered Pool Property. Simultaneously with the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except delivery of the items required pursuant above, the Borrower shall deliver to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground LeaseAdministrative Agent a pro forma Compliance Certificate demonstrating, nor has any Unencumbered Property Owner received any notice of default with respect after giving effect to such Eligible Ground Lease that has not been delivered to holders of the Notes disqualification and any addition pursuant to Section 9.12; 7.2, compliance with the covenants contained in Section 6.21(iii) and (viiv).
(d) In addition, the Borrower may voluntarily remove any Project from the Unencumbered Pool Properties by delivering to the knowledge Administrative 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 Unmatured 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 Pool Property Ownersbeing removed, and a calculation of the Unencumbered Pool Value and Net Operating Income attributable to such Unencumbered Pool Property. Simultaneously with the delivery of the items required above, the ground lessor under such Eligible Ground Lease is not in default with respect to its material obligations thereunder; (vii) a true and correct copy of such Eligible Ground Lease (together with any amendments, modifications, restatements or supplements thereof) has been delivered Borrower shall deliver to the holders of Administrative Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, compliance with the Notes covenants contained in Section 6.21(iii) and (viii) there exist no adverse claims asiv).
Appears in 1 contract
Samples: Credit Agreement (RPT Realty)
Unencumbered Pool Properties. Schedule 5.27 is(a) Subject to clause (b) of this §7.16, the Eligible Real Estate included in the calculation of the Unencumbered Pool Availability and inclusion as Unencumbered Pool Properties shall at all material respects, a true and complete list times satisfy all of the following conditions:
(i) the street address Eligible Real Estate shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Borrower or a Subsidiary Guarantor, free and clear of each Unencumbered Pool Propertyall Liens other than the Liens permitted in §8.2(i)(A) and (iv), and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property except those restrictions which are approved in writing by Agent (including any restrictions contained in any applicable organizational documents); provided that the financial covenants and restrictions on liens contained in the documents evidencing Unsecured Debt permitted by this Agreement that are substantially similar to, or less restrictive than, the restrictions set forth in this Agreement would not be deemed to violate the foregoing restriction;
(ii) none of the Unencumbered Property Owner which owns Eligible Real Estate shall have any material title, survey, environmental, structural or leasesother defects that would give rise to a materially adverse effect as to the value, pursuant use of, operation of or ability to an Eligible Ground Lease, each sell or finance such Unencumbered Pool Property, property;
(iii) if such Real Estate is owned by a Subsidiary Guarantor, the facility type only asset of each such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Pool Property, Availability and inclusion as Unencumbered Pool Properties and related fixtures and personal property;
(iv) no Person other than the name and address Borrower has any direct or indirect ownership of the Approved Manager with respect to any legal, equitable or beneficial interest in such Unencumbered Pool Property (Subsidiary Guarantor if such Unencumbered Pool Property is managed owned or leased under a Ground Lease by a third-party property manager)Subsidiary Guarantor, and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor shall be subject to any Lien;
(ivv) the Tenant Leases to which each such Unencumbered Pool Property is subjectself-managed by the Borrower, together with the name Subsidiary Guarantor or is managed by the Property Manager pursuant to a Management Agreement;
(vi) no Unencumbered Pool Properties which are subject to a lease or leases to any single tenant or any Affiliate thereof shall account for more than fifteen percent (15%) of the applicable Tenants thereunder. Each parcel Unencumbered Pool Value; provided that a failure to satisfy the requirements of real property identified on Schedule 5.27 is a this clause (vi) shall not result in any Real Estate Asset that qualifies not being included as an Unencumbered Pool Property pursuant to the terms hereof. To the extent Property, but any such Unencumbered Pool Property is leased by Value in excess of such limitation being excluded for purposes of calculating Unencumbered Pool Value corresponding thereto shall be similarly excluded; provided, further however, that the Medical Assets and Data Center Assets listed on Schedule 7.16(a)(vi) attached hereto may each account for up to twenty percent (20.0%) of the Unencumbered Pool Value through December 31, 2018, with any excess being excluded from the Unencumbered Pool Value;
(vii) no more than twenty percent (20%) of the total Unencumbered Pool Value shall be attributable to any single Unencumbered Pool Property; provided that a failure to satisfy the requirements of this clause (vii) shall not result in any Real Estate not being included as an Unencumbered Property Owner pursuant Pool Property, but any such Unencumbered Pool Value in excess of such limitation being excluded for purposes of calculating Unencumbered Pool Value corresponding thereto shall be similarly excluded;
(viii) no more than twenty percent (20%) of the total Unencumbered Pool Value shall be attributable to Unencumbered Pool Properties which are subject to Ground Leases; provided that a failure to satisfy the requirements of this clause (viii) shall not result in any Real Estate not being included as an Unencumbered Pool Property, but any such Unencumbered Pool Value in excess of such limitation being excluded for purposes of calculating Unencumbered Pool Value corresponding thereto shall be similarly excluded;
(ix) all Unencumbered Pool Properties will at all times have an aggregate Occupancy Rate of no less than ninety percent (90%);
(x) unless otherwise approved by Agent, aggregate rent and other payments under a lease or leases to any tenants that have physician ownership of greater than sixty-six and two-thirds percent (66.67%) shall not account for more than twenty percent (20%) of the Net Operating Income or Adjusted Net Operating Income; provided that a failure to satisfy the requirements of this clause (x) shall not result in any Real Estate not being included as an Unencumbered Pool Property, but any such Unencumbered Pool Value in excess of such limitation being excluded for purposes of calculating Unencumbered Pool Value corresponding thereto shall be similarly excluded;
(xi) the Borrower shall have delivered to the Agent (A) a written request to include such Eligible Ground LeaseReal Estate in the calculation of the Unencumbered Pool Availability, (iB) the Eligible Unencumbered Pool Qualification Documents, and such Eligible Unencumbered Pool Qualification Documents shall have been approved by the Agent, (C) a certification as to the matters covered under §7.16(a)(i)-(x), and (D) such Eligible Ground Lease is in full force and effect and remains unmodified except to other information as the extent expressly permitted by Section 9.12; (ii) except as expressly permitted by Section 9.12, no rights in favor of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.12, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default Agent may reasonably require with respect to such Eligible Ground Lease that Real Estate, including, but not limited to, any information required by the Agent to determine the Unencumbered Pool Value attributable to such Eligible Real Estate and compliance with this §7.16; and
(xii) such Eligible Real Estate has not been delivered to holders of removed from the Notes pursuant to Section 9.12; (vi) to the knowledge calculation of the Unencumbered Property OwnersPool Availability pursuant to §7.16(c), §7.16(d) or §7.16(e).
(b) Notwithstanding the foregoing, in the event any Real Estate does not qualify as Eligible Real Estate or satisfy the requirements of §7.16(a), such Real Estate shall be included in the calculation of the Unencumbered Pool Availability so long as the Agent shall have received the prior written consent of each of the Agent, Capital One and the Majority Lenders to the inclusion of such Real Estate in the calculation of the Unencumbered Pool Availability.
(c) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Pool Availability shall be materially damaged or taken by condemnation, then such property shall no longer be included in the calculation of the Unencumbered Pool Availability unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the value of such real estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(d) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Pool Availability, such asset shall no longer be included in the calculation of the Unencumbered Pool Availability. Within five (5) Business Days after any such disqualification, the ground lessor under Borrower shall deliver to the Agent a certificate reflecting such Eligible Ground Lease is not in default disqualification, together with respect the identity of the disqualified asset, a statement as to its material obligations thereunder; (vii) whether any Default or Event of Default arises as a true and correct copy result of such Eligible Ground Lease disqualification, and a calculation of the Unencumbered Pool Availability attributable to such asset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Unencumbered Pool Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.16 and §9.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the calculation of the Unencumbered Pool Availability in its sole discretion, 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 any amendmentsa statement that no Default or Event of Default then exists or would, modificationsupon the occurrence of such event or with passage of time, restatements or supplements thereof) has been delivered result from such removal, the identity of the Unencumbered Pool Property being removed, and a calculation of the value attributable to such Unencumbered Pool Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the holders of Agent a pro forma Compliance Certificate and Unencumbered Pool Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the Notes covenants contained in §7.16 and (viii) there exist no adverse claims as§9.
Appears in 1 contract
Samples: Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Unencumbered Pool Properties. Schedule 5.27 isAs of the Agreement Effective Date, in all material respects, Exhibit H contains a true correct and complete list of (i) the street address of each all Unencumbered Pool PropertyProperties, including applicable ownership information.
(iia) Each of the Unencumbered Property Owner Pool Properties is not located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards and in which owns flood insurance has been made available under the National Flood Insurance Act of 1968 or leasesthe Flood Disaster Protection Act of 1973, as amended, or any successor law or, if any portion of the retail and other commercial buildings on such Properties are located within any such area, the applicable Subsidiary Guarantor has obtained and will maintain through the Facility Termination Date the insurance prescribed in Section 5.16 hereof.
(b) To the Borrower’s knowledge, each of the Unencumbered Pool Properties and the present use and occupancy thereof are in material compliance with all material zoning ordinances (without reliance upon adjoining or other properties), health, fire and building codes, land use laws (including those regulating parking) and Environmental Laws (except as disclosed on the environmental assessments delivered to the Administrative Agent pursuant to an Eligible Ground Lease, each such this Agreement) and other similar laws (“Applicable Laws”).
(c) Each of the Unencumbered Pool Property, Properties (iii) the facility type of each such other than Unencumbered Pool Property, Properties which are vacant or improved only with farm buildings or other non-commercial structures) is served by all utilities required for the current or contemplated use thereof.
(ivd) the name All public roads and address streets necessary for service of and access to each of the Approved Manager Unencumbered Pool Properties (other than Unencumbered Pool Properties which are vacant or improved only with farm buildings or other non-commercial structures) for the current or contemplated use thereof have been completed, and are open for use by the public, or appropriate insured private easements are in place. 13171960\V-5
(e) Borrower is not aware of any material latent or patent structural or other significant deficiency of the Unencumbered Pool Properties (other than Unencumbered Pool Properties which are vacant or improved only with farm buildings or other non-commercial structures). Each of the Unencumbered Pool Properties (other than Unencumbered Pool Properties which are vacant or improved only with farm buildings or other non-commercial structures) is free of damage and waste that would materially and adversely affect the value of the Unencumbered Pool Properties, is in good condition and repair and to Borrower’s knowledge there is no deferred maintenance other than ordinary wear and tear. Each of the Unencumbered Pool Properties is free from damage caused by fire or other casualty.
(f) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Pool Properties (other than Unencumbered Pool Properties which are vacant or improved only with farm buildings or other non-commercial structures) are in a good and safe condition and repair and to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems.
(g) To the Borrower’s knowledge, all improvements on the Unencumbered Pool Property (if such Properties lie within the boundaries and building restrictions of the legal descriptions of record of Unencumbered Pool Property is managed by a third-party property manager)Properties, and (iv) no improvements encroach upon easements benefiting the Tenant Leases to which each such Unencumbered Pool Property is subject, together with Properties other than encroachments that do not materially adversely affect the name use or occupancy of the applicable Tenants thereunder. Each parcel of real property identified on Schedule 5.27 is a Real Estate Asset that qualifies as an Unencumbered Pool Property pursuant to Properties and no improvements on adjoining properties encroach upon the terms hereof. To the extent any such Unencumbered Pool Property is leased by an Properties or upon easements benefiting the Unencumbered Property Owner pursuant to an Eligible Ground Lease, Pool Properties other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Pool Properties.
(ih) such Eligible Ground Lease is All Leases are in full force and effect and remains unmodified except to the extent expressly permitted by Section 9.12; (ii) except as expressly permitted by Section 9.12, no rights in favor of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.12, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default with respect to such Eligible Ground Lease that has not been delivered to holders of the Notes pursuant to Section 9.12; (vi) to the knowledge of the Unencumbered Property Owners, the ground lessor under such Eligible Ground Lease effect. Borrower is not in default with respect under any Lease and Borrower has disclosed to its Lenders in writing any material obligations thereunder; (vii) a true and correct copy default, of such Eligible Ground Lease (together with which Borrower has knowledge, under any amendments, modifications, restatements or supplements thereof) has been delivered to the holders of the Notes and (viii) there exist no adverse claims asMajor Lease.
Appears in 1 contract
Unencumbered Pool Properties. Schedule 5.27 is(a) Subject to clause (b) of this §7.16, the Eligible Real Estate included in the calculation of the Unencumbered Pool Availability and inclusion as Unencumbered Pool Properties shall at all material respects, a true and complete list times satisfy all of the following conditions:
(i) the street address Eligible Real Estate shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Borrower or a Subsidiary Guarantor, free and clear of each Unencumbered Pool Propertyall Liens other than the Liens permitted in §8.2(i)A and (iv), and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property except those restrictions which are approved in writing by Agent (including any restrictions contained in any applicable organizational documents);
(ii) none of the Unencumbered Property Owner which owns Eligible Real Estate shall have any material title, survey, environmental, structural or leasesother defects that would give rise to a materially adverse effect as to the value, pursuant use of, operation of or ability to an Eligible Ground Lease, each sell or finance such Unencumbered Pool Property, property;
(iii) if such Real Estate is owned by a Subsidiary Guarantor, the facility type only asset of each such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Pool Property, Availability and inclusion as Unencumbered Pool Properties and related fixtures and personal property;
(iv) no Person other than the name and address Borrower has any direct or indirect ownership of the Approved Manager with respect to any legal, equitable or beneficial interest in such Unencumbered Pool Property (Subsidiary Guarantor if such Unencumbered Pool Property is managed owned or leased under a Ground Lease by a third-party property manager)Subsidiary Guarantor, and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor shall be subject to any Lien;
(ivv) the Tenant Leases to which each such Unencumbered Pool Property is subjectself-managed by the Borrower, together with the name Subsidiary Guarantor or is managed by the Property Manager pursuant to a Management Agreement;
(vi) no Unencumbered Pool Properties which are subject to a lease or leases to any single tenant or any Affiliate thereof shall account for more than fifteen percent (15%) of the applicable Tenants thereunder. Each parcel Unencumbered Pool Value (and any excess shall be excluded from the Unencumbered Pool Value);
(vii) no more than twenty percent (20%) of real property identified on Schedule 5.27 is a Real Estate Asset that qualifies as an the total Unencumbered Pool Value shall be attributable to any single Unencumbered Pool Property pursuant (and any excess shall be excluded from the Unencumbered Pool Value);
(viii) no more than twenty percent (20%) of the total Unencumbered Pool Value shall be attributable to Unencumbered Pool Properties which are subject to Ground Leases (and any excess shall be excluded from the Unencumbered Pool Value);
(ix) all Unencumbered Pool Properties will at all times have an aggregate Occupancy Rate of no less than ninety percent (90%);
(x) aggregate rent and other payments under a lease or leases to any tenants that have physician ownership of greater than sixty-six and two-thirds percent (66.67%) shall not account for more than twenty percent (20%) of the Net Operating Income or Adjusted Net Operating Income (and any excess shall be excluded from the Unencumbered Pool Value);
(xi) the Borrower shall have delivered to the terms hereof. To the extent any such Unencumbered Pool Property is leased by an Unencumbered Property Owner pursuant Agent (A) a written request to an Eligible Ground Lease, (i) include such Eligible Ground Lease is Real Estate in full force and effect and remains unmodified except to the extent expressly permitted by Section 9.12; (ii) except as expressly permitted by Section 9.12, no rights in favor of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.12, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default with respect to such Eligible Ground Lease that has not been delivered to holders of the Notes pursuant to Section 9.12; (vi) to the knowledge calculation of the Unencumbered Property OwnersPool Availability, (B) the ground lessor under Eligible Unencumbered Pool Qualification Documents, and such Eligible Ground Lease is not in default with respect to its material obligations thereunder; Unencumbered Pool Qualification Documents shall have been approved by the Agent and the Documentation Agent, (viiC) a true and correct copy of such Eligible Ground Lease (together with any amendments, modifications, restatements or supplements thereof) has been delivered certification as to the holders of the Notes and (viii) there exist no adverse claims asmatters covered under §7.16(a)(i)-(x), and
Appears in 1 contract
Samples: Term Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Unencumbered Pool Properties. Schedule 5.27 6.24 (as updated pursuant to the terms hereof through the delivery of a Borrowing Base Certificate, including pursuant to Section 8.17) is, in all material respects, a true and complete list of (i) the street address of each Unencumbered Pool Property, (ii) the Unencumbered Property Owner which owns or leases, pursuant to an Eligible Ground Lease, each such Unencumbered Pool Property, (iii) the facility type of each such Unencumbered Pool Property, (iv) the name and address of the Approved Manager with respect to such Unencumbered Pool Property (if such Unencumbered Pool Property is managed by a third-party property manager), and (iv) the Tenant Leases to which each such Unencumbered Pool Property is subject, together with the name and addresses of the applicable Tenants thereunder, the square footage demised to the applicable Tenants thereunder and the termination dates thereof. Each parcel of real property identified on Schedule 5.27 6.24 is a Real Estate Asset that qualifies as an Unencumbered Pool Property pursuant to the terms hereof. To the extent any such Unencumbered Pool Property is leased by an Unencumbered Property Owner pursuant to an Eligible Ground Lease, (i) such Eligible Ground Lease is in full force and effect and remains unmodified except to the extent expressly permitted by Section 9.127.13(b)(vii); (ii) except as expressly permitted by Section 9.127.13(b)(vii), no rights in favor of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.127.13, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default with respect to such Eligible Ground Lease that has not been delivered to holders of the Notes Administrative Agent pursuant to Section 9.127.13(b)(viii); (vi) to the knowledge of the Unencumbered Property Owners, the ground lessor under such Eligible Ground Lease is not in default with respect to its material obligations thereunder; (vii) a true and correct copy of such Eligible Ground Lease (together with any amendments, modifications, restatements or supplements thereof) has been delivered to the holders of the Notes Administrative Agent; and (viii) there exist no adverse claims asas to the applicable Unencumbered Property Owner’s title or right to possession of the leasehold premises referenced in such Eligible Ground Lease.
Appears in 1 contract
Unencumbered Pool Properties. Schedule 5.27 is(a) Subject to clause (b) of this §7.16, the Eligible Real Estate included in the calculation of the Unencumbered Pool Availability and inclusion as Unencumbered Pool Properties shall at all material respects, a true and complete list times satisfy all of the following conditions:
(i) the street address Eligible Real Estate shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Borrower or a Subsidiary Guarantor, free and clear of each Unencumbered Pool Propertyall Liens other than the Liens permitted in §8.2(i)A and (iv), and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property except those restrictions which are approved in writing by Agent (including any restrictions contained in any applicable organizational documents);
(ii) none of the Unencumbered Property Owner which owns Eligible Real Estate shall have any material title, survey, environmental, structural or leasesother defects that would give rise to a materially adverse effect as to the value, pursuant use of, operation of or ability to an Eligible Ground Lease, each sell or finance such Unencumbered Pool Property, property;
(iii) if such Real Estate is owned by a Subsidiary Guarantor, the facility type only asset of each such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Pool Property, Availability and inclusion as Unencumbered Pool Properties and related fixtures and personal property;
(iv) no Person other than the name and address Borrower has any direct or indirect ownership of the Approved Manager with respect to any legal, equitable or beneficial interest in such Unencumbered Pool Property (Subsidiary Guarantor if such Unencumbered Pool Property is managed owned or leased under a Ground Lease by a third-party property manager)Subsidiary Guarantor, and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor shall be subject to any Lien;
(ivv) the Tenant Leases to which each such Unencumbered Pool Property is subjectself-managed by the Borrower, together with the name Subsidiary Guarantor or is managed by the Property Manager pursuant to a Management Agreement;
(vi) no Unencumbered Pool Properties which are subject to a lease or leases to any single tenant or any Affiliate thereof shall account for more than fifteen percent (15%) of the applicable Tenants thereunder. Each parcel Unencumbered Pool Value (and any excess shall be excluded from the Unencumbered Pool Value);
(vii) no more than twenty percent (20%) of real property identified on Schedule 5.27 is a Real Estate Asset that qualifies as an the total Unencumbered Pool Value shall be attributable to any single Unencumbered Pool Property pursuant (and any excess shall be excluded from the Unencumbered Pool Value);
(viii) no more than twenty percent (20%) of the total Unencumbered Pool Value shall be attributable to Unencumbered Pool Properties which are subject to Ground Leases (and any excess shall be excluded from the Unencumbered Pool Value);
(ix) all Unencumbered Pool Properties will at all times have an aggregate Occupancy Rate of no less than ninety percent (90%);
(x) aggregate rent and other payments under a lease or leases to any tenants that have physician ownership of greater than sixty-six and two-thirds percent (66.67%) shall not account for more than twenty percent (20%) of the Net Operating Income or Adjusted Net Operating Income (and any excess shall be excluded from the Unencumbered Pool Value;
(xi) the Borrower shall have delivered to the terms hereof. To Agent (A) a written request to include such Eligible Real Estate in the extent any such calculation of the Unencumbered Pool Property is leased by an Unencumbered Property Owner pursuant to an Eligible Ground LeaseAvailability, (iB) the Eligible Unencumbered Pool Qualification Documents, and such Eligible Unencumbered Pool Qualification Documents shall have been approved by the Agent and Documentation Agent, (C) a certification as to the matters covered under §7.16(a)(i)-(x), and (D) such Eligible Ground Lease is in full force and effect and remains unmodified except to other information as the extent expressly permitted by Section 9.12; (ii) except as expressly permitted by Section 9.12, no rights in favor of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.12, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default Agent may reasonably require with respect to such Eligible Ground Lease that Real Estate, including, but not limited to, any information required by the Agent to determine the Unencumbered Pool Value attributable to such Eligible Real Estate and compliance with this §7.16; and
(xii) such Eligible Real Estate has not been delivered to holders of removed from the Notes pursuant to Section 9.12; (vi) to the knowledge calculation of the Unencumbered Property OwnersPool Availability pursuant to §7.16(c), §7.16(d) or §7.16(e).
(b) Notwithstanding the foregoing, in the event any Real Estate does not qualify as Eligible Real Estate or satisfy the requirements of §7.16(a), such Real Estate shall be included in the calculation of the Unencumbered Pool Availability so long as the Agent shall have received the prior written consent of each of the Agent, the ground lessor under such Eligible Ground Lease is not in default with respect Documentation Agent and the Majority Lenders to its material obligations thereunder; (vii) a true and correct copy the inclusion of such Real Estate in the calculation of the Unencumbered Pool Availability.
(c) In the event that all or any material portion of any Eligible Ground Lease Real Estate included in the calculation of the Unencumbered Pool Availability shall be materially damaged or taken by condemnation, then such property shall no longer be included in the calculation of the Unencumbered Pool Availability unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the value of such real estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(d) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Pool Availability, such asset shall no longer be included in the calculation of the Unencumbered Pool Availability. 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 asset, a statement as to whether any amendmentsDefault or Event of Default arises as a result of such disqualification, modificationsand a calculation of the Unencumbered Pool Availability attributable to such asset. Simultaneously with the delivery of the items required pursuant above, restatements or supplements thereof) has been delivered the Borrower shall deliver to the holders Agent a pro forma Compliance Certificate and Unencumbered Pool Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.16 and §9.
(e) In addition, the Borrower may voluntarily remove any Real Estate from the calculation of the Notes Unencumbered Pool Availability in its sole discretion, 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, the identity of the Unencumbered Pool Property being removed, and (viii) there exist no adverse claims asa calculation of the value attributable to such Unencumbered Pool Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Unencumbered Pool Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.16 and §9.
Appears in 1 contract
Samples: Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Unencumbered Pool Properties. Schedule 5.27 is, Each of the Unencumbered Pool Properties (other any Unencumbered Pool Property approved pursuant to clause (c) of the definition of “Unencumbered Pool”) satisfies all of the requirements contained in all material respects, a true and complete list the definition of (i) the street address of each “Eligible Unencumbered Pool Property, (ii) the Unencumbered Property Owner which owns or leases, pursuant to an Eligible Ground Lease, each such Unencumbered Pool Property, (iii) the facility type of each such Unencumbered Pool Property, (iv) the name and address ”. Each of the Approved Manager with respect to such Unencumbered Pool Property Controlled Subsidiaries that owns (if such or leases pursuant to a Ground Lease) an Unencumbered Controlled Pool Property then included in the Unencumbered Pool Property is managed by a third-party property manager), and (iv) satisfies the Tenant Leases requirements of this Agreement to which each such Unencumbered Pool Property is subject, together with the name of the applicable Tenants thereunder. Each parcel of real property identified on Schedule 5.27 is a Real Estate Asset that qualifies as be an Unencumbered Pool Property pursuant Controlled Subsidiary.
(h) By deleting in its entirety the first (1st) sentence of Section 8.14 of the Credit Agreement, and inserting in lieu thereof the following: “The Parent, the Borrower, each other Loan Party and each Borrowing Base Subsidiary shall each take such actions as are necessary to preserve its right and ability to pledge its interest in the Unencumbered Pool Properties to the terms hereof. To the extent Agent without any such Unencumbered Pool Property is leased by pledge after the date hereof causing or permitting the acceleration (after the giving of notice or the passage of time, or otherwise) of any other Indebtedness of the Loan Parties or any of their respective Subsidiaries; provided, however, that this Section 8.14 shall not prohibit (a) an Unencumbered Property Owner pursuant agreement that conditions a Person’s ability to an Eligible Ground Leaseencumber its assets to be included in a pool of unencumbered properties to comply with financial covenant ratios with respect to Unsecured Indebtedness or upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that in each case do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets or (b) a provision contained in any agreement that evidences Unsecured Indebtedness which contains restrictions on encumbering assets that are substantially similar to, or less restrictive than, those restrictions contained in the Loan Documents.
(i) such Eligible Ground Lease is By deleting the words “and 10.2.” appearing in full force and effect and remains unmodified except to the extent expressly permitted by sixth (6th) line of Section 9.12; (ii) except as expressly permitted by Section 9.12, no rights in favor 9.3. of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; Credit Agreement and deleting the words “and the covenants in Sections 10.1.(i) and (iii) except as expressly permitted by j)” appearing in the last line of Section 9.12, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default with respect to such Eligible Ground Lease that has not been delivered to holders 9.3. of the Notes pursuant to Credit Agreement.
(j) By deleting in its entirety Section 9.12; (vi10.1.(a) to the knowledge of the Unencumbered Property OwnersCredit Agreement, and inserting in lieu thereof the ground lessor under such Eligible Ground Lease is not in default with respect to its material obligations thereunder; (vii) a true and correct copy of such Eligible Ground Lease (together with any amendments, modifications, restatements or supplements thereof) has been delivered to the holders of the Notes and (viii) there exist no adverse claims asfollowing:
Appears in 1 contract
Unencumbered Pool Properties. Schedule 5.27 is, in (a) The Unencumbered Pool Properties shall at all material respects, a true and complete list times satisfy all of the following conditions:
(i) the street address of each such Real Estate has been designated as an “Unencumbered Pool Property, (ii” on Schedule 1 hereto or in a Compliance Certificate in accordance with Section 6.1(v) the Unencumbered Property Owner which owns or leases, delivered pursuant to an Eligible Ground Lease, each such Unencumbered Pool Property, (iii) the facility type of each such Unencumbered Pool Property, (iv) the name and address of the Approved Manager with respect to such Unencumbered Pool Property (if such Unencumbered Pool Property is managed by a third-party property manager)this Section, and (iv) the Tenant Leases to which each such Unencumbered Pool Property is subject, together with the name of the applicable Tenants thereunder. Each parcel of real property identified on Schedule 5.27 is a Real Estate Asset that qualifies in any event has not been removed as an Unencumbered Pool Property pursuant to Section 6.29(c) or (d); and
(ii) the terms hereof. To Unencumbered Pool Properties shall consist solely of Projects which have (A) an aggregate occupancy level of tenants (excluding the extent 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 Pool Property is leased by an Unencumbered Property Owner pursuant to an Eligible Ground Lease, (i) such Eligible Ground Lease is Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant lease requiring current rental payments and which are in full force and effect and remains unmodified except (provided, however, with respect to the extent expressly permitted by calculations set forth in this Section 9.12; (ii6.29(a)(ii) except as expressly permitted by Section 9.12, no rights in favor 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 Pool Property Owner lessee have been waivedwhen making such calculation), canceled and (B) an aggregate level of tenants (excluding the Borrower or surrendered; any of its Affiliates) under leases in such Unencumbered Pool 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 Pool 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 Pool Property from the foregoing occupancy calculations with respect to an Unencumbered Pool Property (x) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Administrative Agent has approved in writing as a property that can be excluded from such calculation. Without limiting the foregoing, the Administrative 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 Pool 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 Pool Property as a Redevelopment Property for the purposes of this Section 6.29.
(b) In the event that any Subsidiary of the Borrower owns a Project which would otherwise qualify as an Unencumbered Pool Property and the Borrower desires for the same to become an Unencumbered Pool Property, then such property may become an Unencumbered Pool Property but only in the event that all of the terms and conditions of this Section 6.29(b) and Section 6.26 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor (if required by this Agreement);
(ii) The organizational agreements of such Subsidiary or such other resolutions or consents satisfactory to Agent shall, if such Subsidiary is required to be a Subsidiary Guarantor by this Agreement, 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) except as expressly permitted by Section 9.12All covenants, no election or option under such Eligible Ground Lease has been exercised by agreements, and representations in the Unencumbered Property Owner ground lessee (other than options to renew or extend Loan Documents herein of the term thereof); (iv) all rental Borrower and other charges due the Guarantors and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default their Subsidiaries shall be true and correct with respect to such Eligible Ground Lease Subsidiary;
(iv) No Default or Unmatured Default shall exist or might exist in the event that has not been delivered such Subsidiary becomes a Subsidiary Guarantor or acquires such asset or such asset becomes an Unencumbered Pool Property; and
(v) The Project acquired or owned by such Subsidiary shall qualify as a Qualifying Unencumbered Pool Property hereunder.
(c) Upon any Unencumbered Pool Property ceasing to holders qualify as an Unencumbered Pool Property, such Unencumbered Pool Property shall no longer be included in the calculation of the Notes Unencumbered Pool Value nor shall its Net Operating Income be included for purposes of determining compliance with Section 6.21(iv). Within five (5) Business days after any such disqualification, the Borrower shall deliver to the Administrative Agent a certificate reflecting such disqualification, together with the identity of the disqualified Unencumbered Pool Property, a statement as to whether any Default or Unmatured Default arises as a result of such disqualification, and a calculation of the Unencumbered Pool Value and Net Operating Income attributable to such Unencumbered Pool Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Administrative Agent a pro forma Compliance Certificate demonstrating, after giving effect to such disqualification and any addition pursuant to Section 9.12; 7.2, compliance with the covenants contained in Section 6.21(iii) and (viiv) and Section 6.29(a)(ii).
(d) In addition, the Borrower may voluntarily remove any Project from the Unencumbered Pool Properties by delivering to the knowledge Administrative 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 Unmatured 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 Pool Property Ownersbeing removed, and a calculation of the Unencumbered Pool Value and Net Operating Income attributable to such Unencumbered Pool Property. Simultaneously with the delivery of the items required above, the ground lessor under such Eligible Ground Lease is not in default with respect to its material obligations thereunder; (vii) a true and correct copy of such Eligible Ground Lease (together with any amendments, modifications, restatements or supplements thereof) has been delivered Borrower shall deliver to the holders of Administrative Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, compliance with the Notes covenants contained in Section 6.21(iii) and (viiiiv) there exist no adverse claims asand Section 6.29(a)(ii).
Appears in 1 contract
Samples: Credit Agreement (Ramco Gershenson Properties Trust)
Unencumbered Pool Properties. SECTION 4.1. INCLUSION OF UNENCUMBERED POOL PROPERTIES.
(a) EXISTING UNENCUMBERED POOL PROPERTIES. Subject to compliance with the terms and conditions of Section 6.1.(a), as of the Effective Date the parties hereto acknowledge and agree that the Properties listed on Schedule 5.27 is4.1. are Unencumbered Pool Properties.
(b) ADDITIONAL UNENCUMBERED POOL PROPERTIES. After the Effective Date, in all material respects, a true and complete list an Eligible Property shall be included as Unencumbered Pool Property upon delivery to the Agent of (i) an Unencumbered Pool Certificate pursuant to Section 9.4.(a) setting forth the street address of each information required to be contained therein and assuming that such -29- Eligible Property is included as an Unencumbered Pool Property, (ii) such other information as the Unencumbered Agent or any Lender (through the Agent) may reasonably request in connection with the evaluation of such Eligible Property. Subject to the terms and conditions of this Agreement, upon the Agent's receipt of such certificate and such other information, such Eligible Property Owner which owns or leases, pursuant to shall be included as an Eligible Ground Lease, each such Unencumbered Pool Property, (iii) . Any Property that does not satisfy the facility type requirements of each such Unencumbered Pool Property, (iv) the name and address of the Approved Manager with respect to such Unencumbered Pool an Eligible Property (if such Unencumbered Pool Property is managed by a third-party property manager), and (iv) the Tenant Leases to which each such Unencumbered Pool Property is subject, together with the name of the applicable Tenants thereunder. Each parcel of real property identified on Schedule 5.27 is a Real Estate Asset that qualifies shall be included as an Unencumbered Pool Property pursuant only upon the written approval of the Requisite Lenders. If a Property that is to the terms hereof. To the extent any such become an Unencumbered Pool Property is leased owned (or is being acquired) by an Unencumbered Property Owner pursuant to an Eligible Ground Lease, (i) such Eligible Ground Lease is in full force and effect and remains unmodified except to the extent expressly permitted by Section 9.12; (ii) except as expressly permitted by Section 9.12, no rights in favor a Subsidiary of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.12, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment Borrower that is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect a party to the applicable Eligible Ground LeaseGuaranty, nor has any such Property shall not become an Unencumbered Pool Property Owner received any notice of default with respect unless and until an Accession Agreement executed by such Subsidiary, and all other items required to such Eligible Ground Lease that has not been be delivered to holders of the Notes pursuant to under Section 9.12; (vi) to the knowledge of the Unencumbered Property Owners8.14., the ground lessor under such Eligible Ground Lease is not in default with respect to its material obligations thereunder; (vii) a true and correct copy of such Eligible Ground Lease (together with any amendments, modifications, restatements or supplements thereof) has have all been delivered to the holders Agent.
SECTION 4.2. TERMINATION OF DESIGNATION AS UNENCUMBERED POOL PROPERTY. Any Property previously included as an Unencumbered Pool Property but which is not included in an Unencumbered Pool Certificate subsequently submitted pursuant to this Agreement shall no longer be included as an Unencumbered Pool Property (effective as of the Notes and (viiidate of receipt by the Agent of such Unencumbered Pool Certificate) there so long as no Default or Event of Default exists or would exist immediately after such Property is no adverse claims aslonger included as an Unencumbered Pool Property.
Appears in 1 contract
Unencumbered Pool Properties. Schedule 5.27 6.24 (as updated pursuant to the terms hereof through the delivery of a Borrowing Base Certificate, including pursuant to Section 8.17) is, in all material respects, a true and complete list of (i) the street address of each Unencumbered Pool Property, (ii) the Unencumbered Property Owner Credit Party which owns or leases, pursuant to an Eligible Ground Lease, each such Unencumbered Pool Property, (iii) the facility type of each such Unencumbered Pool Property, (iv) the name and address of the Approved Manager with respect to such Unencumbered Pool Property (if such Unencumbered Pool Property is managed by a third-party property manager), and (iv) the Tenant Leases to which each such Unencumbered Pool Property is subject, together with the name and addresses of the applicable Tenants thereunder, the square footage demised to the applicable Tenants thereunder and the termination dates thereof. Each parcel of real property identified on Schedule 5.27 6.24 is a Real Estate Asset that qualifies as an Unencumbered Pool Property pursuant to the terms hereof. To the extent any such Unencumbered Pool Property is leased by an Unencumbered Property Owner a Credit Party pursuant to an Eligible Ground Lease, (i) such Eligible Ground Lease is in full force and effect and remains unmodified except to the extent expressly permitted by Section 9.127.13(b)(vii); (ii) except as expressly permitted by Section 9.127.13(b)(vii), no rights in favor of the applicable Unencumbered Property Owner Credit Party lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.127.13, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner Credit Party ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner Credit Party is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner Credit Party received any notice of default with respect to such Eligible Ground Lease that has not been delivered to holders of the Notes Administrative Agent pursuant to Section 9.127.13(b)(viii); (vi) to the knowledge of the Unencumbered Property OwnersCredit Parties, the ground lessor under such Eligible Ground Lease is not in default with respect to its material obligations thereunder; (vii) a true and correct copy of such Eligible Ground Lease (together with any amendments, modifications, restatements or supplements thereof) has been delivered to the holders of the Notes Administrative Agent; and (viii) there exist no adverse claims asas to the applicable Credit Party’s title or right to possession of the leasehold premises referenced in such Eligible Ground Lease.
Appears in 1 contract
Unencumbered Pool Properties. Schedule 5.27 is(a) The Borrower shall have the right, at any time, and from time to time, to include any Eligible Real Estate in the calculation of Unencumbered Pool Availability by providing written notice to Agent of Borrower’s intent to include such Eligible Real Estate in the calculation of Unencumbered Pool Availability, provided that the Eligible Real Estate included in the calculation of the Unencumbered Pool Availability shall at all material respects, a true and complete list times satisfy all of the following conditions:
(i) the street address Eligible Real Estate shall be owned one hundred percent (100%) in fee simple by Borrower, a Wholly-Owned Subsidiary of the Borrower or a Subsidiary of Borrower in which Borrower directly or indirectly owns all of the Equity Interests except for Equity Interests on account of Sub-REIT Preferred Equity and/or Residual Developer Interests permitted under this Agreement, in each case free and clear of all Liens other than the Liens permitted in §8.2;
(ii) such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable Organizational Agreements), provided, however, that such Eligible Real Estate may be subject to a Put Option approved by Agent (such approval not to be unreasonably withheld, conditioned or delayed) so long as the terms of such Put Option do not restrict or limit (including, without limitation, by requiring the consent or approval of the holder of such Put Option or other third party) the ability of Borrower or any of its Subsidiaries to (1) sell, assign or otherwise transfer such Eligible Real Estate at any time except during any specified put option lockout period set forth in the applicable agreements evidencing or relating to such Put Option (and any subsequent put option lock periods set forth therein in the event that such Eligible Real Estate is not timely sold during the previous put option lockout periods), in each case, as set forth in the agreements evidencing or relating to such Put Option approved by Agent in connection with the addition of such Real Estate as an Unencumbered Pool Property (it being acknowledged and agreed that the Put Options existing at Closing with respect to the Initial Unencumbered Pool Properties have been approved by Agent), or (2) encumber such Eligible Real Estate as collateral for Indebtedness;
(iii) if such Eligible Real Estate is directly or indirectly owned by a Wholly-Owned Subsidiary of the Borrower, (a) such Wholly-Owned Subsidiary shall be a Subsidiary Guarantor, (b) the only material asset of such Subsidiary shall be Eligible Real Estate included in the calculation of the Unencumbered Pool Availability and related fixtures and personal property and other Investments permitted pursuant to §8.3, and (c) if such Subsidiary is subject to a Residual Developer Interest, the Person holding such Residual Developer Interest shall not (1) have the right or option to cause the Borrower or such Subsidiary to encumber, pledge, sell or otherwise transfer such Eligible Real Estate, or (2) be entitled to any termination fee or other payment upon the purchase of such Residual Developer Interest on account of such Person exercising the Put Option, if any, associated with such Residual Developer Interest (except for the price for such Put Option set forth in the Organizational Agreements for the applicable Developer JV (the “Put Option Strike Price”)), and, if such Residual Developer Interest is subject to a Put Option, such Residual Developer Interest shall fully terminate, and the holder thereof shall have no further rights with respect to such Residual Developer Interest, upon payment in full of the Put Option Strike Price;
(iv) the Equity Interests held by Borrower or any Subsidiary of Borrower in each Subsidiary that directly or indirectly owns such Real Estate shall be free and clear of all Liens, other than Liens permitted by §8.2(i)(A);
(v) none of the 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 or ability to sell or refinance such property;
(A) Borrower or a Wholly-Owned Subsidiary of Borrower shall at all times be the sole general partner or managing member of any Developer JV which owns a direct or indirect interest in such Eligible Real Estate, (B) Borrower and any of its Subsidiaries having an interest in such Developer JV (whether such interest is a general partnership interest, limited partnership interest, limited liability company interest or any other type of interest) (1) shall perform all of its material obligations under the applicable partnership agreements, operating agreements, joint venture agreements or other Organizational Agreements governing or controlling such Developer JV, and (2) shall not permit any additional or new partners or members to be admitted to such Developer JV, except as permitted under §§8.4(i) or (ii) of this Agreement or, to the extent the Developer under such Developer JV has express rights under the applicable Organizational Agreements to transfer all or a portion of its Equity Interests in such Developer JV to an Affiliate of such Developer without the prior consent or approval of Borrower, any Guarantor or any Subsidiary of Borrower or any Guarantor, the transfer of all or a portion of such Developer’s Equity Interests in such Developer JV to an Affiliate of such Developer, or otherwise cause or permit the interest of such Person to be diluted in any manner, and (C) such Developer JV shall either directly own such Eligible Real Estate or shall own directly or indirectly, free of any lien, encumbrance or other adverse claim, one hundred percent (100%) of the economic, voting and beneficial interest of the Unencumbered Pool Property Owner which owns such Eligible Real Estate; and
(vii) if a Sub-REIT owns any direct or indirect interest in such Eligible Real Estate (or in the Unencumbered Pool Property Owner which owns such Eligible Real Estate), Borrower shall not cause or permit the amount of Sub-REIT Preferred Equity with respect to any such Sub-REIT to be increased, in each case, without the prior written consent of the Agent, provided that, in no event shall the foregoing limit or restrict any transfers of Sub-REIT Preferred Equity.
(b) Agent shall, within twenty (20) Business Days after receiving Borrower’s written notice of intent to include any Eligible Real Estate in the calculation of Unencumbered Pool Availability, together with all of the Eligible Real Estate Qualification Documents (including any resubmittals thereof in response to revisions or additional information reasonably requested by Agent in order to evidence compliance with the applicable requirements for the inclusion of such Eligible Real Estate in the calculation of Unencumbered Pool Availability) and all other documentation and information reasonably requested by Agent to permit the Agent to confirm whether such Real Estate is Eligible Real Estate (including, without limitation, an Appraisal of such Real Estate and, in the event Agent reasonably disapproves such Appraisal pursuant to §5.1(c), a Replacement Appraisal of such Real Estate) and satisfies the conditions of §7.19(a), advise the Borrower whether such Real Estate is Eligible Real Estate and satisfies the conditions of §7.19(a), or whether such Real Estate is not Eligible Real Estate and/or does not satisfy the conditions of §7.19(a) (in which event, such notification shall provide, in reasonable detail, the reasons for such non-satisfaction).
(c) The Unencumbered Pool Properties included in the calculation of Unencumbered Pool Availability shall at all times have an aggregate weighted occupancy rate of at least eighty-five percent (85%).
(d) The Unencumbered Pool Availability attributable to any single Unencumbered Pool Property (which for purposes of the requirement set forth in this §7.19(d) shall include each of the “phases”, if applicable, associated with such Unencumbered Pool Property) shall not exceed an amount equal to twenty-five percent (25%) of the total Unencumbered Pool Availability; provided that a failure to satisfy the requirements of this §7.19(d) shall not result in any Unencumbered Pool Property not being included in the calculation of Unencumbered Pool Availability, but any of such Unencumbered Pool Availability in excess of such limitation shall be excluded for purposes of calculating Unencumbered Pool Availability, but such excess shall be included in the calculation of the aggregate Appraised Value for purposes of determining compliance with the Target Pool Size;
(e) The aggregate Unencumbered Pool Value of all of the Unencumbered Pool Properties included in the calculation of Unencumbered Pool Availability shall at all times be equal to or greater than the Target Pool Size, except solely in connection with the sale of one or more Unencumbered Pool Properties to Person(s) other than Borrower, its Subsidiaries or any of their respective Subsidiaries or Affiliates (except for Monogram Parent, PGGM Parent or any of their respective Wholly-Owned Subsidiaries, provided, that such sale is made pursuant to a bona-fide arm’s length transaction); provided, however, that in no event shall (a) there be less than six (6) Unencumbered Pool Properties included in the calculation of the Unencumbered Pool Availability, and (b) the aggregate Unencumbered Pool Value of the Unencumbered Pool Properties included in the calculation of Unencumbered Pool Availability be less than $350,000,000.00;
(f) In the event that all or any material portion of any Unencumbered Pool Property included in the calculation of the Unencumbered Pool Availability shall be damaged in any material respect or taken by condemnation, then such property shall no longer be included in the calculation of the Unencumbered Pool Availability unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes operational in all material respects and the Agent shall receive evidence reasonably satisfactory to the Agent of the value of such real estate following such repair or restoration (both at such time and prospectively) or (ii) the Unencumbered Property Owner Agent shall receive evidence reasonably satisfactory to the Agent (which owns evidence may include the availability of rent loss and other insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or leases, pursuant to an condemnation (as determined by Agent reasonably and in good faith). In the event that such damage or condemnation only partially affects such Eligible Ground Lease, each such Real Estate included in the calculation of the Unencumbered Pool PropertyAvailability, (iii) then the facility type of each such Agent may in good faith reduce the Unencumbered Pool Property, Availability attributable thereto based on such damage until such time as the Agent receives evidence reasonably satisfactory to the Required Lenders that the value of such real estate (ivboth at such time and prospectively) shall no longer be materially adversely and permanently affected by such damage or condemnation.
(g) Upon any asset ceasing to qualify to be included in the name and address calculation of the Approved Manager Unencumbered Pool Availability, such asset shall no longer be included in the calculation of the Unencumbered Pool Availability unless otherwise approved in writing by the Required Lenders. Within five (5) Business Days after becoming aware of any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with respect the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Unencumbered Pool Availability attributable to such asset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent an updated Unencumbered Pool Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §7.19, §9.1 and §9.2.
(h) Provided, subject to §12.2(b) in the case of an Unencumbered Pool Property which is being removed to cure a Default or Event of Default that affects only such Unencumbered Pool Property or the owner thereof, no Default or Event of Default shall have occurred hereunder and be continuing, or would exist immediately after giving effect to the transactions contemplated by this §7.19(h), the Borrower may, by giving written notice of the same to Agent, remove an Unencumbered Pool Property from the calculation of Unencumbered Pool Availability, subject to and upon the following terms and conditions:
(if i) Borrower shall deliver to the Agent written notice of its election to remove such Unencumbered Pool Property from the calculation of Unencumbered Pool Availability no later than five (5) Business Days (or such shorter period as Agent may approve) prior to the date on which such removal is managed to be effected, which notice shall be accompanied by a third-party property manager), Compliance Certificate prepared using the financial statements of the Borrower most recently provided or required to be provided to the Agent under §6.4 or §7.4 adjusted in good faith by the Borrower to give effect to such removal and demonstrating that no Default or Event of Default with respect to the covenants referred to therein shall exist after giving effect to such removal.
(ivii) the Tenant Leases to which each Promptly following such removal such Unencumbered Pool Property is subjectshall be sold or otherwise disposed of or transferred such that such Unencumbered Pool Property shall no longer be owned, together with the name directly or indirectly, by Borrower, any Subsidiary Guarantor or any of the applicable Tenants thereunder. Each parcel their respective Subsidiaries;
(iii) Without limiting or affecting any other provision hereof, (x) any removal of real property identified on Schedule 5.27 is a Real Estate Asset that qualifies as an Unencumbered Pool Property pursuant to this §7.19(h) will not cause the Borrower to be in violation of the covenants set forth in this Agreement, and (y) if and to the extent applicable, Borrower shall comply with the terms hereof. To the extent of §§3.2(a) and (b) in connection with any such removal of an Unencumbered Pool Property is leased by an Unencumbered Property Owner pursuant to an Eligible Ground Lease, (i) such Eligible Ground Lease is in full force and effect and remains unmodified except to the extent expressly permitted by Section 9.12; (ii) except as expressly permitted by Section 9.12, no rights in favor of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.12, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereofthis §7.19(h); and
(iv) Borrower shall pay all rental reasonable out-of-pocket costs and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default with respect to such Eligible Ground Lease that has not been delivered to holders expenses of the Notes pursuant to Section 9.12; (vi) to the knowledge of the Unencumbered Property OwnersAgent in connection with such removal, the ground lessor under such Eligible Ground Lease is not in default with respect to its material obligations thereunder; (vii) a true and correct copy of such Eligible Ground Lease (together with any amendmentsincluding without limitation, modifications, restatements or supplements thereof) has been delivered to the holders of the Notes and (viii) there exist no adverse claims asreasonable attorney’s fees.
Appears in 1 contract
Samples: Credit Agreement (Monogram Residential Trust, Inc.)
Unencumbered Pool Properties. Schedule 5.27 6.24 (as updated pursuant to the terms hereof through the delivery of a Borrowing Base Certificate, including pursuant to Section 8.17) is, in all material respects, a true and complete list of (i) the street address of each Unencumbered Pool Property, (ii) the Unencumbered Property Owner which owns or leases, pursuant to an Eligible Ground Lease, each such Unencumbered Pool Property, (iii) the facility type of each such Unencumbered Pool Property, (iv) the name and address of the Approved Manager with respect to such Unencumbered Pool Property (if such Unencumbered Pool Property is managed by a third-party property manager), and (iv) the Tenant Leases to which each such Unencumbered Pool Property is subject, together with the name and addresses of the applicable Tenants thereunder, the square footage demised to the applicable Tenants thereunder and the termination dates thereof. Each parcel of real property identified on Schedule 5.27 6.24 is a Real Estate Asset that qualifies as an Unencumbered Pool Property pursuant to the terms hereof. To the extent any such Unencumbered Pool Property is leased by an Unencumbered Property Owner pursuant to an Eligible Ground Lease, (i) such Eligible Ground Lease is in full force and effect and remains unmodified except to the extent expressly permitted by Section 9.127.13(b)(vii); (ii) except as expressly permitted by Section 9.127.13(b)(vii), no rights in favor of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.127.13, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default with respect to such Eligible Ground Lease that has not been delivered to holders of the Notes Administrative Agent pursuant to Section 9.127.13(b)(viii); (vi) to the knowledge of the Unencumbered Property Owners, the ground lessor under such Eligible Ground Lease is not in default with respect to its material obligations thereunder; (vii) a true and correct copy of such Eligible Ground Lease (together with any amendments, modifications, restatements or supplements thereof) has been delivered to the holders of the Notes Administrative Agent; and (viii) there exist no adverse claims asas to the applicable Unencumbered Property Owner’s title or right to possession of the leasehold premises referenced in such Eligible Ground Lease. Section 7 AFFIRMATIVE COVENANTS Each Credit Party covenants and agrees that until the date on which the Obligations shall have been paid in full or otherwise satisfied (other than with respect to contingent indemnification obligations for which no claim has been made and Letters of Credit that have been Cash Collateralized and other obligations of each Credit Party hereunder or under any other Credit Document which, by their express terms, survive such payment in full or satisfaction), and the Commitments hereunder shall have expired or been terminated (such date, the “Termination Date”), such Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 7.
Appears in 1 contract
Unencumbered Pool Properties. Schedule 5.27 is, in all material respects, a true and complete list of (i) the street address of each Unencumbered Pool Property, (ii) the Unencumbered Property Owner which owns or leases, pursuant to an Eligible Ground Lease, each such Unencumbered Pool Property, (iii) the facility type of each such Unencumbered Pool Property, (iv) the name and address of the Approved Manager with respect to such Unencumbered Pool Property (if such Unencumbered Pool Property is managed by a third-party property manager), and (iv) the Tenant Leases to which each such Unencumbered Pool Property is subject, together with the name of the applicable Tenants thereunder. Each parcel of real property identified on Schedule 5.27 is a Real Estate Asset that qualifies as an Unencumbered Pool Property pursuant to the terms hereof. To the extent any such Unencumbered Pool Property is leased by an Unencumbered Property Owner pursuant to an Eligible Ground Lease, (i) such Eligible Ground Lease is in full force and effect and remains unmodified except to the extent expressly permitted by Section 9.12; (ii) except as expressly permitted by Section 9.12, no rights in favor of the applicable Unencumbered Property Owner lessee have been waived, canceled or surrendered; (iii) except as expressly permitted by Section 9.12, no election or option under such Eligible Ground Lease has been exercised by the Unencumbered Property Owner ground lessee (other than options to renew or extend the term thereof); (iv) all rental and other charges due and payable thereunder have been paid in full (except to the extent such payment is not yet overdue subject to applicable cure or grace periods); (v) no Unencumbered Property Owner is in default under such Eligible Ground Lease (beyond any applicable cure or grace periods) which would permit the applicable ground lessor to terminate or exercise any other remedy with respect to the applicable Eligible Ground Lease, nor has any Unencumbered Property Owner received any notice of default with respect to such Eligible Ground Lease that has not been delivered to holders of the Notes pursuant to Section 9.12; (vi) to the knowledge of the Unencumbered Property Owners, the ground lessor under such Eligible Ground Lease is not in default with respect to its material obligations thereunder; (vii) a true and correct copy of such Eligible Ground Lease (together with any amendments, modifications, restatements or supplements thereof) has been delivered to the holders of the Notes and (viii) there exist no adverse claims asthe
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Physicians Realty Trust)
