Borrowing Base Properties. To each Borrower’s knowledge and except (i) as disclosed in the Real Property Information delivered to Administrative Agent, and (ii) where the failure of any of the following to be true and correct would not constitute a Material Adverse Effect or result in a Material Property Event with respect to any Borrowing Base Property: (a) Each Borrowing Base Property Owner has good record and marketable title in fee simple to all Borrowing Base Properties necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a Material Property Event with respect to such Borrowing Base Property. Each applicable Borrowing Base Property Owner has good record and marketable fee simple title to the Borrowing Base Property owned by such Borrowing Base Property Owner, subject only to Liens permitted by Section 6.01. All of the outstanding Equity Interests in each Borrowing Base Property Owner have been validly issued, are fully paid and nonassessable and are owned by a Borrower or a Wholly Owned Subsidiary thereof free and clear of all Liens (other than Liens permitted by Section 6.01). (b) Each Borrowing Base Property complies in all material respects with all Legal Requirements, including all subdivision and platting requirements, without reliance on any adjoining or neighboring property. No Credit Party has received any written notice or written claim from any Person that a Borrowing Base Property, or any use, activity, operation, or maintenance thereof or thereon, is not in compliance with any Legal Requirement, and has no knowledge of any such noncompliance except as disclosed to Administrative Agent; (c) The Credit Parties have not directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so), other than pursuant to Permitted Liens, any development rights, air rights, or other similar rights, privileges, or attributes with respect to a Borrowing Base Property, including those arising under any zoning or property use ordinance or other Legal Requirements; (d) All utility services necessary for the use of each Borrowing Base Property and the operation thereof for their intended purpose are available at each Borrowing Base Property; (e) The current use of each Borrowing Base Property complies in all material respects with all applicable zoning ordinances, regulations, and restrictive covenants affecting such Borrowing Base Property, all use restrictions of any Governmental Authority having jurisdiction have been satisfied; (f) Except as disclosed in writing to the Administrative Agent, the rent rolls delivered to the Administrative Agent with respect thereof are true, correct and complete in all material respects and the Leases referred to thereon are all valid and in full force and effect; (ii) the Leases (including modifications thereto) are in writing, and there are no oral agreements with respect thereto; (iii) the copies of each of the Leases (if any) delivered to the Administrative Agent are true, correct and complete in all material respects and have not been modified (or further modified); (iv) to the knowledge of any Credit Party, no material defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to be a Material Property Event; (v) no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other Leases that individually or in the aggregate could reasonably be expected to be a Material Property Event; (vi) no Credit Party has made any presently effective assignment or pledge of any of the Leases, the rents or any interests therein except to the Administrative Agent; (vii) no tenant or other party has an option or right of first refusal to purchase all or any portion of any Borrowing Base Property; (viii) no tenant has the right to terminate any Lease prior to expiration of the stated term of such Lease (except as a result of counterparty breach, casualty, condemnation or other customary basis of a right to terminate); and (ix) no tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits); (g) No Borrowing Base Property is the subject of any pending or, to any Credit Party’s knowledge, threatened condemnation or material adverse zoning proceeding for which Administrative Agent has not been notified in writing; and (h) Each Borrowing Base Property complies with the conditions to be included as a Borrowing Base Property under Section 2.23(d)(ii) and, except as previously disclosed to the Administrative Agent in writing, no Exclusion Event with respect to any such Borrowing Base Property has occurred.
Appears in 3 contracts
Sources: Credit Agreement (Vinebrook Homes Trust, Inc.), Increase Agreement, Joinder, and Second Amendment to Credit Agreement (Vinebrook Homes Trust, Inc.), Revolving Credit Agreement (Vinebrook Homes Trust, Inc.)
Borrowing Base Properties. To 6.14.1 Each of the Borrowing Base Property Owners possesses such Licenses and Permits issued by the appropriate federal, state, or local regulatory agencies or bodies necessary to develop, own and operate (as applicable) each Borrower’s knowledge and Borrowing Base Property given status of the development of the Borrowing Base Property, except (i) as disclosed in the Real Property Information delivered to Administrative Agent, and (ii) where the failure of to possess any of the following to be true and correct such License or Permit would not constitute have a Material Adverse Effect or result in a Material Property Event with respect to any Borrowing Base Property:
(a) Each Effect. The Borrowing Base Property Owner has good record Owners are in material compliance with the terms and marketable title in fee simple to conditions of all Borrowing Base Properties necessary or used in the ordinary conduct of its businesssuch Licenses and Permits, except for such defects in title as could where the failure so to comply would not, individually singly or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a Material Property Event with respect Adverse Effect. All of the Licenses and Permits are valid and in full force and effect, except where the invalidity of such Licenses and Permits or the failure of such Licenses and Permits to such Borrowing Base Propertybe in full force and effect would not result in a Material Adverse Effect. Each applicable Neither the Borrower nor any of the Borrowing Base Property Owner Owners has good record received any written notice of proceedings relating to the revocation or modification of any such Licenses and marketable Permits which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
6.14.2 (i) The Borrowing Base Property Owners have either (x) fee simple title to the Borrowing Base Property owned by such Properties or (y) a leasehold estate interest in the Borrowing Base Property OwnerProperties, subject only as set forth in Schedule 6.14.2(i) (as such may be updated from time to Liens permitted by time in accordance with Section 6.01. All of the outstanding Equity Interests in each Borrowing Base Property Owner have been validly issued, are fully paid and nonassessable and are owned by a Borrower or a Wholly Owned Subsidiary thereof free and clear of all Liens (other than Liens permitted by Section 6.016.22).
(b) Each Borrowing Base Property complies in all material respects with all Legal Requirements, including all subdivision and platting requirements, without reliance on any adjoining or neighboring property. No Credit Party has received any written notice or written claim from any Person that a Borrowing Base Property, or any use, activity, operation, or maintenance thereof or thereon, is not in compliance with any Legal Requirement, and has no knowledge of any such noncompliance except as disclosed to Administrative Agent;
(c) The Credit Parties have not directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so), other than pursuant to Permitted Liens, any development rights, air rights, or other similar rights, privileges, or attributes with respect to a Borrowing Base Property, including those arising under any zoning or property use ordinance or other Legal Requirements;
(d) All utility services necessary for the use of each Borrowing Base Property and the operation thereof for their intended purpose are available at each Borrowing Base Property;
(e) The current use of each Borrowing Base Property complies in all material respects with all applicable zoning ordinances, regulations, and restrictive covenants affecting such Borrowing Base Property, all use restrictions of any Governmental Authority having jurisdiction have been satisfied;
(f) Except as disclosed in writing to the Administrative Agent, the rent rolls delivered to the Administrative Agent with respect thereof are true, correct and complete in all material respects and the Leases referred to thereon are all valid and in full force and effect; (ii) the Leases (including modifications thereto) interest of the Borrowing Base Property Owners in the Borrowing Base Properties are not subject to any Liens except for those in writing, favor of the Administrative Agent for the ratable benefit of the Lenders securing the repayment of Obligations and there are no oral agreements with respect theretoother Permitted Liens; (iii) neither the copies of each Borrower nor any of the Leases Borrowing Base Property Owners has received written notice of the assertion of any claim by anyone adverse to any Loan Party’s ownership, or leasehold rights in and to any Borrowing Base Property (if any) delivered except as may be disclosed in any update from time to the Administrative Agent are true, correct and complete time in all material respects and have not been modified (or further modifiedaccordance with Section 6.22); and (iv) to the knowledge of any Credit Party, no material defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to be a Material Property Event; (v) no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other Leases that individually or in the aggregate could reasonably be expected to be a Material Property Event; (vi) no Credit Party has made any presently effective assignment or pledge of any of the Leases, the rents or any interests therein except to the Administrative Agent; (vii) no tenant or other party Person has an option or right of first refusal to purchase all or any portion part of any Borrowing Base Property; (viii) no tenant Property or any interest therein which has the right to terminate any Lease prior to expiration of the stated term of such Lease not been waived (except as may be disclosed in Schedule 6.14.2(i) or in any update from time to time in accordance with Section 6.22);
6.14.3 Except to the extent the failure of the following to be true would not result in a result Material Adverse Effect or is disclosed in the Environmental Reports (as defined in the Environmental Indemnity) (i) each Borrowing Base Property is free of counterparty breach, casualty, condemnation any Hazardous Materials in violation of any Environmental Legal Requirements applicable to such property; (ii) none of the Borrowing Base Property Owners or other customary basis Borrower has received any written notice of a right claim under or pursuant to terminateany Environmental Legal Requirements applicable to a Borrowing Base Property or under common law pertaining to Hazardous Materials on or originating from any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with Section 6.22); and (ixiii) no tenant none of the Borrowing Base Property Owners or Borrower has prepaid more than one month’s rent in advance received any written notice from any Governmental Authority claiming any material violation of any Environmental Legal Requirements that is uncured or unremediated (except for bona fide security depositsas may be disclosed in any update from time to time in accordance with Section 6.22);
6.14.4 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (gi) No with respect to the Borrowing Base Properties, each Major Lease is in full force and effect (except as may be disclosed in any update from time to time in accordance with Section 6.22), (ii) except as set forth in Schedule 6.14.4(ii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s knowledge, none of the Borrowing Base Property Owners is in default after notice and the expiration of all applicable cure periods in the performance of any material obligation under any Major Lease and the Borrower has no knowledge of any circumstances which, with the passage of time or the giving of notice, or both, would constitute an event of default by any party under any of the Major Leases, (iii) except as set forth in Schedule 6.14.4(iii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s knowledge, no tenant is in default under any Major Lease, (iv) except as otherwise expressly set forth in Schedule 6.14.4(iv) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s Knowledge, there are no actions, voluntary or involuntary, pending against any tenant under a Major Lease under any bankruptcy or insolvency laws, and (v) none of the Major Leases and none of the rents or other amounts payable thereunder has been assigned, pledged or encumbered by any of the Borrowing Base Property Owners or any other Person, except with respect to the Lien in favor of the Administrative Agent on behalf of the Lenders securing the repayment of Obligations.
6.14.5 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) each Ground Lease with respect to a Borrowing Base Property is valid, binding and in full force and effect as against the subject of any pending orapplicable Borrowing Base Property Owners and, to any Credit Partythe Borrower’s knowledge, threatened condemnation the other party thereto, (ii) none of Borrowing Base Property Owner’s interest in the Ground Leases is subject to any pledge, lien, assignment, license or material adverse zoning proceeding for other agreement granting to any third party any interest therein, and (iii) no payments under any Ground Lease with respect to a Borrowing Base property are delinquent and no notice of default thereunder has been sent or received by any Loan Party which Administrative Agent has not been notified in writing; and
(h) Each cured or waived prior to the date hereof, and to the knowledge of the Borrower, there does not exist under any of the Ground Leases any default by any Borrowing Base Property complies Owners or any event which merely with notice or lapse of time or both, would constitute such a default by any of the conditions Borrowing Base Property Owners, and (iv) the identity of each ground lessor under a Ground Lease with respect to be included as a Borrowing Base Property under Section 2.23(d)(ii) and, except as previously disclosed to the Administrative Agent and whether each such ground lessor is an Affiliate of any Loan Party are set forth in writing, no Exclusion Event with respect to any such Borrowing Base Property has occurredSchedule 6.14.5.
Appears in 3 contracts
Sources: Loan Agreement (Cedar Shopping Centers Inc), Loan Agreement (Cedar Shopping Centers Inc), Loan Agreement (Cedar Shopping Centers Inc)
Borrowing Base Properties. To each Borrower’s knowledge and except (i) as disclosed in the Real Property Information delivered to Administrative Agent, and (ii) where the failure of any of the following to be true and correct would not constitute a Material Adverse Effect or result in a Material Property Event with respect to any Borrowing Base Property:
(a) Each Borrowing Base Property Owner has good record and marketable title in fee simple to all Borrowing Base Properties necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a Material Property Event with respect to such Borrowing Base Property. Each applicable Borrowing Base Property Owner has good record and marketable fee simple title to the Borrowing Base Property owned by such Borrowing Base Property Owner, subject only to Liens permitted by Section 6.01. All of the outstanding Equity Interests in each Borrowing Base Property Owner have been validly issued, are fully paid and nonassessable and are owned by a Borrower or a Wholly Owned Subsidiary thereof free and clear of all Liens (other than Liens permitted by Section 6.01).
(b) Each Borrowing Base Property complies in all material respects with all Legal Requirements, including all subdivision and platting requirements, without reliance on any adjoining or neighboring property. No Credit Party has received any written notice or written claim from any Person that a Borrowing Base Property, or any use, activity, operation, or maintenance thereof or thereon, is not in compliance with any Legal Requirement, and has no knowledge of any such noncompliance except as disclosed to Administrative Agent;
(c) The Credit Parties have not directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so), other than pursuant to Permitted Liens, any development rights, air rights, or other similar rights, privileges, or attributes with respect to a Borrowing Base Property, including those arising under any zoning or property use ordinance or other Legal Requirements;
(d) All utility services necessary for the use of each Borrowing Base Property and the operation thereof for their intended purpose are available at each Borrowing Base Property;
(e) The current use of each Borrowing Base Property complies in all material respects with all applicable zoning ordinances, regulations, and restrictive covenants affecting such Borrowing Base Property, all use restrictions of any Governmental Authority having jurisdiction have been satisfied;
(f) Except as disclosed in writing to the Administrative Agent, the rent rolls delivered to the Administrative Agent with respect thereof are true, correct and complete in all material respects and the Leases referred to thereon are all valid and in full force and effect; (ii) the Leases (including modifications thereto) are in writing, and there are no oral agreements with respect thereto; (iii) the copies of each of the Leases (if any) delivered to the Administrative Agent are true, correct and complete in all material respects and have not been modified (or further modified); (iv) to the knowledge of any Credit Party, no material defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to be a Material Property Event; (v) no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other Leases that individually or in the aggregate could reasonably be expected to be a Material Property Event; (vi) no Credit Party has made any presently effective assignment or pledge of any of the Leases, the rents or any interests therein except to the Administrative Agent; (vii) no tenant or other party has an option or right of first refusal to purchase all or any portion of any Borrowing Base Property; (viii) no tenant has the right to terminate any Lease prior to expiration of the stated term of such Lease (except as a result of counterparty breach, casualty, condemnation or other customary basis of a right to terminate); and (ix) no tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits);
(g) No Borrowing Base Property is the subject of any pending or, to any Credit Party’s knowledge, threatened condemnation or material adverse zoning proceeding for which Administrative Agent has not been notified in writing; and
(h) Each Borrowing Base Property complies with the conditions to be included as a Borrowing Base Property under Section 2.23(d)(ii) and, except as previously disclosed to the Administrative Agent in writing, no Exclusion Event with respect to any such Borrowing Base Property has occurred.
Appears in 1 contract
Borrowing Base Properties. To each Borrower’s knowledge Schedule 2 contains a correct and except (i) complete list of all Borrowing Base Properties as disclosed in the Real Property Information delivered to Administrative Agent, and (ii) where the failure of any of the following to be true and correct would not constitute a Material Adverse Effect or result in a Material Property Event with Effective Date, including applicable ownership information. With respect to any each Borrowing Base PropertyProperty from time to time:
(a) Each no Borrowing Base Property Owner with respect to which Mortgage has good record been delivered to the Administrative Agent is located in an area that has been identified by the Secretary of Housing and marketable title Urban Development as an area having special flood hazards and in fee simple to all which flood insurance has been made available under the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law or, if any portion of the buildings on such Borrowing Base Properties necessary or used in are located within any such area, the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a Material Property Event with respect to such Borrowing Base Property. Each applicable Borrowing Base Property Owner has good record and marketable fee simple title to the Borrowing Base Property owned by such Borrowing Base Property Owner, subject only to Liens permitted by Section 6.01. All of the outstanding Equity Interests in each Borrowing Base Property Owner have been validly issued, are fully paid and nonassessable and are owned by a Borrower or a Wholly Owned applicable Subsidiary thereof free Guarantor has obtained and clear of all Liens will maintain through the Maturity Date the flood insurance prescribed in Section 8.5 hereof (other than Liens permitted by Section 6.01including Schedule 8.5).;
(b) Each each of the Borrowing Base Property complies Properties and the present use and occupancy thereof are in all material respects compliance with all Legal Requirements, including all subdivision and platting requirements, zoning ordinances (without reliance on any upon adjoining or neighboring property. No Credit Party has received any written notice or written claim from any Person that a Borrowing Base Propertyother properties), or any usehealth, activityfire and building codes, operation, or maintenance thereof or thereon, is not in compliance with any Legal Requirement, land use laws (including those regulating parking) and has no knowledge of any such noncompliance Environmental Laws (except as disclosed on the environmental assessments delivered to the Administrative AgentAgent and accepted by the Administrative Agent and the Requisite Lenders pursuant to this Agreement or as otherwise permitted under the definition of Eligible Property) and other Applicable Laws;
(c) The Credit Parties have not directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so), other than pursuant to Permitted Liens, any development rights, air rights, or other similar rights, privileges, or attributes with respect to a each of the Borrowing Base Property, including those arising under any zoning Properties is served by all utilities required for the current or property contemplated use ordinance or other Legal Requirementsthereof;
(d) All utility services all public roads and streets necessary for service of and access to each of the use of each Borrowing Base Property Properties for the current or contemplated use thereof have been completed, and are open for use by the operation thereof for their intended purpose public, or appropriate insured private easements are available at each Borrowing Base Propertyin place;
(e) The current use the Borrower is not aware of each any material latent or patent structural or other significant deficiency of the Borrowing Base Property complies in all material respects with all applicable zoning ordinances, regulations, Properties;
(f) each of the Borrowing Base Properties is free of damage and restrictive covenants affecting waste that would materially and adversely affect the value of such Borrowing Base Property, all use restrictions of is in good condition and repair subject to any Governmental Authority having jurisdiction have been satisfied;
(f) Except as disclosed items set forth in writing to the Administrative Agent, the rent rolls any property condition report delivered to and approved by the Administrative Agent with respect thereof are true, correct and complete in all material respects and the Leases referred to thereon are all valid and in full force and effect; (ii) Requisite Lenders or as otherwise permitted under the Leases (including modifications thereto) are in writingdefinition of Eligible Property, and there are no oral agreements with respect thereto; (iii) the copies of each of the Leases (if any) delivered to the Administrative Agent are trueBorrower’s knowledge, correct there is no deferred maintenance other than ordinary wear and complete in all material respects and have not been modified (or further modified); (iv) to the knowledge of any Credit Party, no material defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to be a Material Property Event; (v) no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other Leases that individually or in the aggregate could reasonably be expected to be a Material Property Event; (vi) no Credit Party has made any presently effective assignment or pledge of any of the Leases, the rents or any interests therein except to the Administrative Agent; (vii) no tenant or other party has an option or right of first refusal to purchase all or any portion of any Borrowing Base Property; (viii) no tenant has the right to terminate any Lease prior to expiration of the stated term of such Lease (except as a result of counterparty breach, casualty, condemnation or other customary basis of a right to terminate); and (ix) no tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits)tear;
(g) No each of the Borrowing Base Property Properties is free from damage caused by fire or other casualty that is not covered by proceeds of, or valid claims under, the subject of any pending or, insurance required by Section 8.5;
(h) to any Credit Partythe Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Borrowing Base Properties are (i) in a good and safe condition and repair and (ii) in material compliance with all Applicable Laws with respect to such systems;
(i) all improvements on the Borrowing Base Properties lie within the boundaries and building restrictions of the legal descriptions of record of the Borrowing Base Properties, no improvements encroach upon easements benefiting the Borrowing Base Properties other than encroachments that do not materially adversely affect the use or occupancy of the Borrowing Base Properties and, to the Borrower’s knowledge, no improvements on adjoining properties encroach upon the Borrowing Base Properties or upon easements benefiting the Borrowing Base Properties other than encroachments that do not materially adversely affect the use or occupancy of the Borrowing Base Properties;
(j) (x) there are no material delinquent property taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Borrowing Base Properties except to the extent such items are being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided and there is no risk of loss, forfeiture, or sale of any interest in the Borrowing Base Properties during such proceedings; and (y) each of the Borrowing Base Properties is subject to property taxes separately without regard to any other property not included in the Borrowing Base Properties;
(k) no condemnation proceeding or eminent domain action is pending or threatened condemnation against any of the Borrowing Base Properties;
(l) each of the Borrowing Base Properties is not, nor is any direct or material adverse zoning proceeding for which Administrative Agent has not been notified indirect interest of the Borrower or any Subsidiary Guarantor in writingany Borrowing Base Properties, subject to any Lien other (other than Eligible Property Permitted Liens) or to any Negative Pledge (other than the Liens and Negative Pledges created pursuant to the Loan Documents to secure the obligations of the Loan Parties); and
(hm) Each each of the Mortgages (which, for the avoidance of doubt, includes Mortgages only on the Existing Borrowing Base Property complies with Properties unless otherwise required hereby) creates a valid first priority Lien against the conditions to be included as a applicable Borrowing Base Property under Section 2.23(d)(ii) and, except as previously disclosed to the Administrative Agent in writing, no Exclusion Event with respect to any such Borrowing Base Property has occurredProperty.
Appears in 1 contract
Sources: Credit Agreement (HC Government Realty Trust, Inc.)
Borrowing Base Properties. To each Borrower’s knowledge and except (i) as disclosed The Loan Parties are the legal and beneficial owners of the Borrowing Base Properties free and clear of any Lien, except for Permitted Liens described in the Real Property Information delivered to Administrative Agentclauses (a), (b), (d) and (iie) where of the failure definition of "Permitted Liens". Each of the Borrowing Base Properties satisfies the requirements in this Agreement to being a Borrowing Base Property. To each Loan Party's knowledge, except as set forth on Schedule 4.01(y) hereto, there are no proceedings in condemnation or eminent domain affecting any of the Borrowing Base Properties and, to the knowledge of each Loan Party, none is threatened. No Person has any option or other right to purchase all or any portion of any of the following Borrowing Base Properties or any interest therein.
(ii) To each Loan Party's knowledge, the Borrowing Base Properties and the use thereof comply in all material respects with all applicable zoning, subdivision and land use laws, regulations and ordinances, all applicable health, fire, building codes, parking laws and all other laws, statutes, codes, ordinances, rules and regulations applicable to the Borrowing Base Properties, or any of them, including without limitation the Americans with Disabilities Act. To each Loan Party's knowledge, all material permits, licenses and certificates for the lawful use, occupancy and operation of each component of each of the Borrowing Base Properties in the manner in which it is currently being used, occupied and operated, including, but not limited to liquor licenses and certificates of occupancy, or the equivalent, have been obtained and are current and in full force and effect. To each Loan Party's knowledge, no legal proceedings are pending or threatened with respect to the zoning of any Borrowing Base Property. To each Loan Party's knowledge, neither the zoning nor any other right to construct, use or operate any Borrowing Base Property is in any way dependent upon or related to any real estate other than such Borrowing Base Property in any way that has had or is reasonably likely to give rise to a materially adverse effect as to the value, use of or ability to sell or finance such Borrowing Base Property. No tract map, parcel map, condominium plan, condominium declaration, or plat of subdivision will be true and correct would not constitute a Material Adverse Effect or result in a Material Property Event recorded by any Loan Party with respect to any Borrowing Base Property:Property without the Administrative Agent's prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.
(aiii) Each [Intentionally omitted.]
(iv) [Intentionally omitted.]
(v) To each Loan Party's knowledge, all improvements on any Borrowing Base Property Owner has Property, including without limitation the roof and all structural components, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior doors, parking facilities, sidewalks and landscaping, are in good record condition and marketable title repair. The Loan Parties are not aware of any latent or patent structural or other material defect or deficiency in fee simple to all any of the Borrowing Base Properties and, to the Loan Parties' knowledge, city water supply, storm and sanitary sewers, and electrical, gas (if applicable) and telephone facilities are available to each of the Borrowing Base Properties within the boundary lines of each of the Borrowing Base Properties (except in any way that has not had and is reasonably likely to not give rise to a materially adverse effect as to the value, use of or ability to sell or finance such Borrowing Base Property), are fully connected to the improvements and are fully operational, are sufficient to meet the reasonable needs of each of the Borrowing Base Properties as now used or presently contemplated to be used, and no other utility facilities are necessary to meet the reasonable needs of any of the Borrowing Base Properties as now used or used presently contemplated. Except in any way that has not had and is reasonably likely to not give rise to a materially adverse effect as to the ordinary conduct value, use of its businessor ability to sell or finance such Borrowing Base Property, except for to the Loan Parties' knowledge no part of any of the Borrowing Base Properties is within a flood plain and none of the improvements thereon create encroachments over, across or upon any of the Borrowing Base Properties' boundary lines, rights of way or easements, and no building or other improvements on adjoining land create such defects in title as an encroachment which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a Material Property Event with respect Effect. All public roads and streets necessary for service of and access to such Borrowing Base Property. Each applicable Borrowing Base Property Owner has good record and marketable fee simple title to each of the Borrowing Base Property owned Properties for the current and contemplated uses thereof have been completed and are serviceable and are physically and legally open for use by such the public. To the Loan Parties' knowledge after due inquiry, any septic system located at any of the Borrowing Base Property Owner, subject only to Liens permitted by Section 6.01. All of the outstanding Equity Interests Properties is in each Borrowing Base Property Owner have been validly issued, are fully paid good and nonassessable safe condition and are owned by a Borrower or a Wholly Owned Subsidiary thereof free repair and clear of in compliance with all Liens (other than Liens permitted by Section 6.01)applicable law.
(bvi) Each of the Borrowing Base Property complies in all material respects with all Legal Requirements, including all subdivision and platting requirements, without reliance on any adjoining Properties is comprised of one (1) or neighboring propertymore parcels which constitute separate tax lots. No Credit Party has received any written notice or written claim from any Person that a Borrowing Base Property, or any use, activity, operation, or maintenance thereof or thereon, is not in compliance with any Legal Requirement, and has no knowledge of any such noncompliance except as disclosed to Administrative Agent;
(c) The Credit Parties have not directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so), other than pursuant to Permitted Liens, any development rights, air rights, or other similar rights, privileges, or attributes with respect to a Borrowing Base Property, including those arising under any zoning or property use ordinance or other Legal Requirements;
(d) All utility services necessary for the use of each Borrowing Base Property and the operation thereof for their intended purpose are available at each Borrowing Base Property;
(e) The current use of each Borrowing Base Property complies in all material respects with all applicable zoning ordinances, regulations, and restrictive covenants affecting such Borrowing Base Property, all use restrictions of any Governmental Authority having jurisdiction have been satisfied;
(f) Except as disclosed in writing to the Administrative Agent, the rent rolls delivered to the Administrative Agent with respect thereof are true, correct and complete in all material respects and the Leases referred to thereon are all valid and in full force and effect; (ii) the Leases (including modifications thereto) are in writing, and there are no oral agreements with respect thereto; (iii) the copies of each of the Leases (if any) delivered to the Administrative Agent are true, correct and complete in all material respects and have not been modified (or further modified); (iv) to the knowledge of any Credit Party, no material defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to be a Material Property Event; (v) no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other Leases that individually or in the aggregate could reasonably be expected to be a Material Property Event; (vi) no Credit Party has made any presently effective assignment or pledge part of any of the LeasesBorrowing Base Properties is included or assessed under or as part of another tax lot or parcel, the rents or any interests therein except to the Administrative Agent; (vii) and no tenant or other party has an option or right of first refusal to purchase all or any portion part of any other property is included or assessed under or as part of the tax lots or parcels comprising any of the Borrowing Base Property; (viii) no tenant has the right to terminate any Lease prior to expiration of the stated term of such Lease (except as a result of counterparty breach, casualty, condemnation or other customary basis of a right to terminate); and (ix) no tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits)Properties.";
(g) No Borrowing Base Property is the subject of any pending or, to any Credit Party’s knowledge, threatened condemnation or material adverse zoning proceeding for which Administrative Agent has not been notified in writing; and
(h) Each Borrowing Base Property complies with the conditions to be included as a Borrowing Base Property under Section 2.23(d)(ii) and, except as previously disclosed to the Administrative Agent in writing, no Exclusion Event with respect to any such Borrowing Base Property has occurred.
Appears in 1 contract
Borrowing Base Properties. To 6.14.1 Each of the Borrowing Base Property Owners possesses such Licenses and Permits issued by the appropriate federal, state, or local regulatory agencies or bodies necessary to own and operate each Borrower’s knowledge and Borrowing Base Property, except (i) as disclosed in the Real Property Information delivered to Administrative Agent, and (ii) where the failure of to possess any of the following to be true and correct such License or Permit would not constitute have a Material Adverse Effect or result in a Material Property Event with respect to any Borrowing Base Property:
(a) Each Effect. The Borrowing Base Property Owner has good record Owners are in material compliance with the terms and marketable title in fee simple to conditions of all Borrowing Base Properties necessary or used in the ordinary conduct of its businesssuch Licenses and Permits, except for such defects in title as could where the failure so to comply would not, individually singly or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a Material Property Event with respect Adverse Effect. All of the Licenses and Permits are valid and in full force and effect, except where the invalidity of such Licenses and Permits or the failure of such Licenses and Permits to such Borrowing Base Propertybe in full force and effect would not result in a Material Adverse Effect. Each applicable Neither the Borrower nor any of the Borrowing Base Property Owner Owners has good record received any written notice of proceedings relating to the revocation or modification of any such Licenses and marketable Permits which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
6.14.2 (i) The Borrowing Base Property Owners have either (x) fee simple title to the Borrowing Base Property owned by such Properties or (y) a leasehold estate interest in the Borrowing Base Property OwnerProperties, subject only as set forth in Schedule 6.14.2(i) (as such may be updated from time to Liens permitted by time in accordance with Section 6.01. All of the outstanding Equity Interests in each Borrowing Base Property Owner have been validly issued, are fully paid and nonassessable and are owned by a Borrower or a Wholly Owned Subsidiary thereof free and clear of all Liens (other than Liens permitted by Section 6.016.22).
(b) Each Borrowing Base Property complies in all material respects with all Legal Requirements, including all subdivision and platting requirements, without reliance on any adjoining or neighboring property. No Credit Party has received any written notice or written claim from any Person that a Borrowing Base Property, or any use, activity, operation, or maintenance thereof or thereon, is not in compliance with any Legal Requirement, and has no knowledge of any such noncompliance except as disclosed to Administrative Agent;
(c) The Credit Parties have not directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so), other than pursuant to Permitted Liens, any development rights, air rights, or other similar rights, privileges, or attributes with respect to a Borrowing Base Property, including those arising under any zoning or property use ordinance or other Legal Requirements;
(d) All utility services necessary for the use of each Borrowing Base Property and the operation thereof for their intended purpose are available at each Borrowing Base Property;
(e) The current use of each Borrowing Base Property complies in all material respects with all applicable zoning ordinances, regulations, and restrictive covenants affecting such Borrowing Base Property, all use restrictions of any Governmental Authority having jurisdiction have been satisfied;
(f) Except as disclosed in writing to the Administrative Agent, the rent rolls delivered to the Administrative Agent with respect thereof are true, correct and complete in all material respects and the Leases referred to thereon are all valid and in full force and effect; (ii) the Leases (including modifications thereto) interest of the Borrowing Base Property Owners in the Borrowing Base Properties are not subject to any Liens except for those in writingfavor of the Administrative Agent for the ratable benefit of the Lenders securing the repayment of Obligations and other Permitted Liens, and there are no oral agreements with respect thereto; (iii) neither the copies of each Borrower nor any of the Leases Borrowing Base Property Owners has received written notice of the assertion of any claim by anyone adverse to any Loan Party's ownership, or leasehold rights in and to any Borrowing Base Property (if any) delivered except as may be disclosed in any update from time to the Administrative Agent are true, correct and complete time in all material respects and have not been modified (or further modifiedaccordance with Section 6.22); (iv) to the knowledge of any Credit Party, no material defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to be a Material Property Event; (v) no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other Leases that individually or in the aggregate could reasonably be expected to be a Material Property Event; (vi) no Credit Party has made any presently effective assignment or pledge of any of the Leases, the rents or any interests therein except to the Administrative Agent; (vii) no tenant or other party Person has an option or right of first refusal to purchase all or any portion part of any Borrowing Base Property; (viii) no tenant Property or any interest therein which has the right to terminate any Lease prior to expiration of the stated term of such Lease not been waived (except as may be disclosed in Schedule 6.14.2(i) or in any update from time to time in accordance with Section 6.22);
6.14.3 Except to the extent the failure of the following to be true would not result in a result Material Adverse Effect or is disclosed in the Environmental Reports (as defined in the Environmental Indemnity) or in the S-11 registration statement filed by CSC on October 23, 2003, (i) each Borrowing Base Property is free of counterparty breach, casualty, condemnation any Hazardous Materials in violation of any Environmental Legal Requirements applicable to such property; (ii) none of the Borrowing Base Property Owners or other customary basis Borrower has received any written notice of a right claim under or pursuant to terminateany Environmental Legal Requirements applicable to a Borrowing Base Property or under common law pertaining to Hazardous Materials on or originating from any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with Section 6.22); and (ixiii) no tenant none of the Borrowing Base Property Owners or Borrower has prepaid more than one month’s rent in advance received any written notice from any Governmental Authority claiming any material violation of any Environmental Legal Requirements that is uncured or unremediated (except for bona fide security depositsas may be disclosed in any update from time to time in accordance with Section 6.22);
6.14.4 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (gi) No with respect to the Borrowing Base Properties, each Major Lease is in full force and effect (except as may be disclosed in any update from time to time in accordance with Section 6.22), (ii) except as set forth in Schedule 6.14.4(ii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower's knowledge, none of the Borrowing Base Property Owners is in default after notice and the expiration of all applicable cure periods in the performance of any material obligation under any Major Lease and the Borrower has no knowledge of any circumstances which, with the passage of time or the giving of notice, or both, would constitute an event of default by any party under any of the Major Leases, (iii) except as set forth in Schedule 6.14.4(iii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower's knowledge, no tenant is in default under any Major Lease, (iv) except as otherwise expressly set forth in Schedule 6.14.4(iv) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower's Knowledge, there are no actions, voluntary or involuntary, pending against any tenant under a Major Lease under any bankruptcy or insolvency laws, and (v) none of the Major Leases and none of the rents or other amounts payable thereunder has been assigned, pledged or encumbered by any of the Borrowing Base Property Owners or any other Person, except with respect to the Lien in favor of the Administrative Agent on behalf of the Lenders securing the repayment of Obligations.
6.14.5 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) each Ground Lease with respect to a Borrowing Base Property is valid, binding and in full force and effect as against the subject of any pending orapplicable Borrowing Base Property Owners and, to any Credit Party’s the Borrower's knowledge, threatened condemnation the other party thereto, (ii) none of Borrowing Base Property Owner's interest in the Ground Leases is subject to any pledge, lien, assignment, license or material adverse zoning proceeding for other agreement granting to any third party any interest therein, and (iii) no payments under any Ground Lease with respect to a Borrowing Base property are delinquent and no notice of default thereunder has been sent or received by any Loan Party which Administrative Agent has not been notified in writing; and
(h) Each cured or waived prior to the date hereof, and to the knowledge of the Borrower, there does not exist under any of the Ground Leases any default by any Borrowing Base Property complies Owners or any event which merely with notice or lapse of time or both, would constitute such a default by any of the conditions Borrowing Base Property Owners, and (iv) the identity of each ground lessor under a Ground Lease with respect to be included as a Borrowing Base Property under Section 2.23(d)(ii) and, except as previously disclosed to the Administrative Agent and whether each such ground lessor is an Affiliate of any Loan Party are set forth in writing, no Exclusion Event with respect to any such Borrowing Base Property has occurredSchedule 6.14.5.
Appears in 1 contract
Borrowing Base Properties. To each Borrower’s knowledge and except (i) as disclosed The Loan Parties are the beneficial, and the Companies are the legal, owners of the Borrowing Base Properties free and clear of any Lien, except for (A) Permitted Liens described in clauses (a), (b), (d) and (e) of the Real Property Information delivered definition of “Permitted Liens”, (B) Liens in favor of the Administrative Agent for the benefit of the Lenders pursuant to Administrative Agentthe Loan Documents, and (iiC) where first priority mortgage liens on such Borrowing Base Properties (including the failure rents, issues and profits therefrom), or any interest therein (including the rents, issues and profits therefrom), and related personal property; provided that no default, or event or condition which with the giving of notice or passage of time would become an event of default, under any Debt secured by a Lien described in this subclause (y)(i)(C) has occurred and is continuing. Each of the Borrowing Base Properties satisfies the requirements in this Agreement to being a Borrowing Base Property. To each of the Parent Guarantor’s and the Borrower’s knowledge, except as set forth on Schedule 4.01(y) hereto, there are no proceedings in condemnation or eminent domain affecting any of the Borrowing Base Properties and, to the knowledge of each of the Parent Guarantor and the Borrower, none is threatened. No Person has any option or other right to purchase all or any portion of any of the following Borrowing Base Properties or any interest therein.
(ii) To each of the Parent Guarantor’s and the Borrower’s knowledge, the Borrowing Base Properties and the use thereof comply in all material respects with all applicable zoning, subdivision and land use laws, regulations and ordinances, all applicable health, fire, building codes, parking laws and all other laws, statutes, codes, ordinances, rules and regulations applicable to the Borrowing Base Properties, or any of them, including without limitation the Americans with Disabilities Act. To each of the Parent Guarantor’s and the Borrower’s knowledge, all material permits, licenses and certificates for the lawful use, occupancy and operation of each component of each of the Borrowing Base Properties in the manner in which it is currently being used, occupied and operated, including, but not limited to liquor licenses and certificates of occupancy, or the equivalent, have been obtained and are current and in full force and effect. To each of the Parent Guarantor’s and the Borrower’s knowledge, no legal proceedings are pending or threatened with respect to the zoning of any Borrowing Base Property. To each of the Parent Guarantor’s and the Borrower’s knowledge, neither the zoning nor any other right to construct, use or operate any Borrowing Base Property is in any way dependent upon or related to any real estate other than such Borrowing Base Property in any way that has had or is reasonably likely to give rise to a materially adverse effect as to the value, use of or ability to sell or finance such Borrowing Base Property. No tract map, parcel map, condominium plan, condominium declaration, or plat of subdivision will be true and correct would not constitute a Material Adverse Effect or result in a Material Property Event recorded by any Loan Party with respect to any Borrowing Base Property:Property without the Administrative Agent’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.
(aiii) Each [Intentionally omitted.]
(iv) [Intentionally omitted.]
(v) To each of the Parent Guarantor’s and the Borrower’s knowledge, all improvements on any Borrowing Base Property Owner has Property, including without limitation the roof and all structural components, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior doors, parking facilities, sidewalks and landscaping, are in good record condition and marketable title repair. Neither the Parent Guarantor nor the Borrower is aware of any latent or patent structural or other material defect or deficiency in fee simple to all any of the Borrowing Base Properties and, to each of the Parent Guarantor’s and the Borrower’s knowledge, city water supply, storm and sanitary sewers, and electrical, gas (if applicable) and telephone facilities are available to each of the Borrowing Base Properties within the boundary lines of each of the Borrowing Base Properties (except in any way that has not had and is reasonably likely to not give rise to a materially adverse effect as to the value, use of or ability to sell or finance such Borrowing Base Property), are fully connected to the improvements and are fully operational, are sufficient to meet the reasonable needs of each of the Borrowing Base Properties as now used or presently contemplated to be used, and no other utility facilities are necessary to meet the reasonable needs of any of the Borrowing Base Properties as now used or used presently contemplated. Except in any way that has not had and is reasonably likely to not give rise to a materially adverse effect as to the ordinary conduct value, use of its businessor ability to sell or finance such Borrowing Base Property, except for to each of the Parent Guarantor’s and the Borrower’s knowledge no part of any of the Borrowing Base Properties is within a flood plain and none of the improvements thereon create encroachments over, across or upon any of the Borrowing Base Properties’ boundary lines, rights of way or easements, and no building or other improvements on adjoining land create such defects in title as an encroachment which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a Material Property Event with respect Effect. All public roads and streets necessary for service of and access to such Borrowing Base Property. Each applicable Borrowing Base Property Owner has good record and marketable fee simple title to each of the Borrowing Base Property owned Properties for the current and contemplated uses thereof have been completed and are serviceable and are physically and legally open for use by such the public. To each of the Parent Guarantor’s and the Borrower’s knowledge after due inquiry, any septic system located at any of the Borrowing Base Property Owner, subject only to Liens permitted by Section 6.01. All of the outstanding Equity Interests Properties is in each Borrowing Base Property Owner have been validly issued, are fully paid good and nonassessable safe condition and are owned by a Borrower or a Wholly Owned Subsidiary thereof free repair and clear of in compliance with all Liens (other than Liens permitted by Section 6.01)applicable law.
(bvi) Each of the Borrowing Base Property complies in all material respects with all Legal Requirements, including all subdivision and platting requirements, without reliance on any adjoining Properties is comprised of one (1) or neighboring propertymore parcels which constitute separate tax lots. No Credit Party has received any written notice or written claim from any Person that a Borrowing Base Property, or any use, activity, operation, or maintenance thereof or thereon, is not in compliance with any Legal Requirement, and has no knowledge of any such noncompliance except as disclosed to Administrative Agent;
(c) The Credit Parties have not directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so), other than pursuant to Permitted Liens, any development rights, air rights, or other similar rights, privileges, or attributes with respect to a Borrowing Base Property, including those arising under any zoning or property use ordinance or other Legal Requirements;
(d) All utility services necessary for the use of each Borrowing Base Property and the operation thereof for their intended purpose are available at each Borrowing Base Property;
(e) The current use of each Borrowing Base Property complies in all material respects with all applicable zoning ordinances, regulations, and restrictive covenants affecting such Borrowing Base Property, all use restrictions of any Governmental Authority having jurisdiction have been satisfied;
(f) Except as disclosed in writing to the Administrative Agent, the rent rolls delivered to the Administrative Agent with respect thereof are true, correct and complete in all material respects and the Leases referred to thereon are all valid and in full force and effect; (ii) the Leases (including modifications thereto) are in writing, and there are no oral agreements with respect thereto; (iii) the copies of each of the Leases (if any) delivered to the Administrative Agent are true, correct and complete in all material respects and have not been modified (or further modified); (iv) to the knowledge of any Credit Party, no material defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to be a Material Property Event; (v) no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other Leases that individually or in the aggregate could reasonably be expected to be a Material Property Event; (vi) no Credit Party has made any presently effective assignment or pledge part of any of the LeasesBorrowing Base Properties is included or assessed under or as part of another tax lot or parcel, the rents or any interests therein except to the Administrative Agent; (vii) and no tenant or other party has an option or right of first refusal to purchase all or any portion part of any other property is included or assessed under or as part of the tax lots or parcels comprising any of the Borrowing Base Property; (viii) no tenant has the right to terminate any Lease prior to expiration of the stated term of such Lease (except as a result of counterparty breach, casualty, condemnation or other customary basis of a right to terminate); and (ix) no tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits);
(g) No Borrowing Base Property is the subject of any pending or, to any Credit Party’s knowledge, threatened condemnation or material adverse zoning proceeding for which Administrative Agent has not been notified in writing; and
(h) Each Borrowing Base Property complies with the conditions to be included as a Borrowing Base Property under Section 2.23(d)(ii) and, except as previously disclosed to the Administrative Agent in writing, no Exclusion Event with respect to any such Borrowing Base Property has occurredProperties.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (American Campus Communities Inc)
Borrowing Base Properties. To each Borrower’s knowledge and except (ia) Each Property identified by Borrower as disclosed a Borrowing Base Property in the Real Property Information most-recent Borrowing Base Report delivered to Administrative Agent, Agent hereunder satisfies the criteria set forth in the definition of Borrowing Base and (ii) where the failure of any of the following to be true no Exclusion Event has occurred and correct would not constitute a Material Adverse Effect or result in a Material Property Event is continuing with respect to any Borrowing Base such Property:
(a) Each Borrowing Base Property Owner has good record and marketable title in fee simple to all Borrowing Base Properties necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a Material Property Event with respect to such Borrowing Base Property. Each applicable Borrowing Base Property Owner has good record and marketable fee simple title to the Borrowing Base Property owned by such Borrowing Base Property Owner, subject only to Liens permitted by Section 6.01. All of the outstanding Equity Interests in each Borrowing Base Property Owner have been validly issued, are fully paid and nonassessable and are owned by a Borrower or a Wholly Owned Subsidiary thereof free and clear of all Liens (other than Liens permitted by Section 6.01).
(b) Each Borrowing Base Property complies in all material respects with all Legal RequirementsLaws, including all subdivision and platting requirements, without reliance on any adjoining or neighboring property. No Credit Party has received any written notice or written claim from any Person that a Borrowing Base Property, or any use, activity, operation, or maintenance thereof or thereon, is not in compliance with any Legal Requirement, and has no knowledge of any such noncompliance except as disclosed to Administrative Agent;.
(c) The Credit Parties Improvements comply in all material respects with all Laws regarding access and facilities for handicapped or disabled persons.
(d) The Improvements have not suffered any Casualty or otherwise been damaged (ordinary wear and tear excepted) and not repaired.
(e) No Borrowing Base Property is the subject of any pending or, to any Loan Party’s knowledge, threatened Condemnation or adverse zoning proceeding.
(f) No Loan Party has directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so), other than pursuant to Permitted Liens, ) any development rights, air rights, or other similar rights, privileges, or attributes with respect to a any Borrowing Base PropertyProperties, including those arising under any zoning or property use ordinance or other Legal Requirements;Law.
(dg) All utility services necessary for the use of each the Borrowing Base Property Properties and the Improvements and the operation thereof for their intended purpose are available at each the Borrowing Base Property;.
(eh) The current use No Loan Party has made any contract or arrangement of any kind the performance of which by the other party thereto would give rise to Liens on the Borrowing Base Properties.
(i) No Borrowing Base Property is part of a larger tract of Property owned by any Loan Party or otherwise included under any unity of title or similar covenant with other Property not owned by a Loan Party and each Borrowing Base Property constitutes a separate tax lot or lots with a separate tax assessment or assessments for such Borrowing Base Property and the Improvements thereon, independent of those for any other Property or improvements.
(j) The Property Plans for each Borrowing Base Property have been approved by all applicable Governmental Authorities and comply in all material respects with all applicable Laws, restrictive covenants, rules and regulations.
(k) The current and anticipated use of the Borrowing Base Properties complies in all material respects with all applicable zoning ordinances, regulations, and restrictive covenants affecting such the Borrowing Base PropertyProperties without the existence of any variance, non-complying use, nonconforming use, or other special exception, all use restrictions of any Governmental Authority having jurisdiction have been satisfied;
(f) Except as disclosed in writing to the Administrative Agent, the rent rolls delivered to the Administrative Agent with respect thereof are true, correct and complete satisfied in all material respects and the Leases referred to thereon are all valid and in full force and effect; (ii) the Leases (including modifications thereto) are in writingrespects, and there are no oral agreements violation of any Law or regulation exists with respect thereto; (iii) the copies of each of the Leases (if any) delivered to the Administrative Agent are true, correct and complete in all material respects and have not been modified (or further modified); (iv) to the knowledge of any Credit Party, no material defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to be a Material Property Event; (v) no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other Leases that individually or in the aggregate could reasonably be expected to be a Material Property Event; (vi) no Credit Party has made any presently effective assignment or pledge of any of the Leases, the rents or any interests therein except to the Administrative Agent; (vii) no tenant or other party has an option or right of first refusal to purchase all or any portion of any Borrowing Base Property; (viii) no tenant has the right to terminate any Lease prior to expiration of the stated term of such Lease (except as a result of counterparty breach, casualty, condemnation or other customary basis of a right to terminate); and (ix) no tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits);
(g) No Borrowing Base Property is the subject of any pending or, to any Credit Party’s knowledge, threatened condemnation or material adverse zoning proceeding for which Administrative Agent has not been notified in writing; and
(h) Each Borrowing Base Property complies with the conditions to be included as a Borrowing Base Property under Section 2.23(d)(ii) and, except as previously disclosed to the Administrative Agent in writing, no Exclusion Event with respect to any such Borrowing Base Property has occurred.
Appears in 1 contract
Borrowing Base Properties. To each Borrower’s knowledge and except (i) as disclosed Each of the Mortgages, when properly recorded in the Real appropriate records, creates a valid, perfected first lien on the respective Borrowing Base Property, subject only to the Liens and other matters disclosed by the Mortgage Policies (or, with respect to the Sweet Home Property, the Sweet Home Title Commitment). The Loan Parties, or with respect to the Student Housing Property Information delivered to Administrative Agentowned by 1772 Sweet Home Road, LLC and Village at Newark Urban Renewal, LLC, 1772 Sweet Home Road, LLC and Village at Newark Urban Renewal, LLC, respectively, are the legal and beneficial owners of the Borrowing Base Properties and ACC OP Sweet Home LLC and ACC OP (Village at Newark) LLC are the legal and beneficial owners of equity interests in such persons respectively, free and clear of any Lien, except for Permitted Liens described in clauses(a), (b), (d) and (iie) where of the failure definition of “Permitted Liens”. Each of the Borrowing Base Properties satisfies the requirements in this Agreement to being a Borrowing Base Property. To each Loan Party’s knowledge, except as set forth on Schedule 4.01(y) hereto, there are no proceedings in condemnation or eminent domain affecting any of the Borrowing Base Properties and, to the knowledge of each Loan Party, none is threatened. No Person has any option or other right to purchase all or any portion of any of the following Borrowing Base Properties or any interest therein.
(ii) To each Loan Party’s knowledge, the Borrowing Base Properties and the use thereof comply in all material respects with all applicable zoning, subdivision and land use laws, regulations and ordinances, all applicable health, fire, building codes, parking laws and all other laws, statutes, codes, ordinances, rules and regulations applicable to the Borrowing Base Properties, or any of them, including without limitation the Americans with Disabilities Act. To each Loan Party’s knowledge, all material permits, licenses and certificates for the lawful use, occupancy and operation of each component of each of the Borrowing Base Properties in the manner in which it is currently being used, occupied and operated, including, but not limited to liquor licenses and certificates of occupancy, or the equivalent, have been obtained and are current and in full force and effect. To each Loan Party’s knowledge, no legal proceedings are pending or threatened with respect to the zoning of any Borrowing Base Property. To each Loan Party’s knowledge, neither the zoning nor any other right to construct, use or operate any Borrowing Base Property is in any way dependent upon or related to any real estate other than such Borrowing Base Property in any way that has had or is reasonably likely to give rise to a materially adverse effect as to the value, use of or ability to sell or finance such Borrowing Base Property. No tract map, parcel map, condominium plan, condominium declaration, or plat of subdivision will be true and correct would not constitute a Material Adverse Effect or result in a Material Property Event recorded by any Loan Party with respect to any Borrowing Base Property:Property without the Administrative Agent’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.
(aiii) Each Borrowing Base Property Owner [Intentionally omitted.]
(iv) The Loan Parties have delivered to the Administrative Agent a true and complete copy of each of the Management Agreements and Material Contracts to which they are a party that will be in effect on the Closing Date, and such Management Agreements and Material Contracts have not been modified or amended except pursuant to amendments or modifications delivered to Administrative Agent. Such Management Agreements and Material Contracts are in full force and effect and no default by any of the Loan Parties or Managers exists thereunder. Except for the rights of (x) each of the property managers pursuant to any Management Agreements and (y) third-party vendors (including, without limitation, landscapers, ATM lessors, vending machine lessors and the like), no Person has good record and marketable title in fee simple any right or obligation to all manage any of the Borrowing Base Properties necessary or used to receive compensation in connection with such management. Except for the ordinary conduct parties to any leasing brokerage agreement that has been delivered to the Administrative Agent, no Person has any right or obligation to lease or solicit tenants for any of its businessthe Borrowing Base Properties, or (except for cooperating outside brokers) to receive compensation in connection with such defects leasing.
(v) To each Loan Party’s knowledge, all improvements on any Borrowing Base Property, including without limitation the roof and all structural components, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior doors, parking facilities, sidewalks and landscaping, are in title good condition and repair. The Loan Parties are not aware of any latent or patent structural or other material defect or deficiency in any of the Borrowing Base Properties and, to the Loan Parties’ knowledge, city water supply, storm and sanitary sewers, and electrical, gas (if applicable) and telephone facilities are available to each of the Borrowing Base Properties within the boundary lines of each of the Borrowing Base Properties (except in any way that has not had and is reasonably likely to not give rise to a materially adverse effect as to the value, use of or ability to sell or finance such Borrowing Base Property), are fully connected to the improvements and are fully operational, are sufficient to meet the reasonable needs of each of the Borrowing Base Properties as now used or presently contemplated to be used, and no other utility facilities are necessary to meet the reasonable needs of any of the Borrowing Base Properties as now used or presently contemplated. Except in any way that has not had and is reasonably likely to not give rise to a materially adverse effect as to the value, use of or ability to sell or finance such Borrowing Base Property, to the Loan Parties’ knowledge no part of any of the Borrowing Base Properties is within a flood plain and none of the improvements thereon create encroachments over, across or upon any of the Borrowing Base Properties’ boundary lines, rights of way or easements, and no building or other improvements on adjoining land create such an encroachment which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a Material Property Event with respect Effect. All public roads and streets necessary for service of and access to such Borrowing Base Property. Each applicable Borrowing Base Property Owner has good record and marketable fee simple title to each of the Borrowing Base Property owned Properties for the current and contemplated uses thereof have been completed and are serviceable and are physically and legally open for use by such the public. To the Loan Parties’ knowledge after due inquiry, any septic system located at any of the Borrowing Base Property Owner, subject only to Liens permitted by Section 6.01. All of the outstanding Equity Interests Properties is in each Borrowing Base Property Owner have been validly issued, are fully paid good and nonassessable safe condition and are owned by a Borrower or a Wholly Owned Subsidiary thereof free repair and clear of in compliance with all Liens (other than Liens permitted by Section 6.01)applicable law.
(bvi) Each of the Borrowing Base Property complies in all material respects with all Legal Requirements, including all subdivision and platting requirements, without reliance on any adjoining Properties is comprised of one (1) or neighboring propertymore parcels which constitute separate tax lots. No Credit Party has received any written notice or written claim from any Person that a Borrowing Base Property, or any use, activity, operation, or maintenance thereof or thereon, is not in compliance with any Legal Requirement, and has no knowledge of any such noncompliance except as disclosed to Administrative Agent;
(c) The Credit Parties have not directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so), other than pursuant to Permitted Liens, any development rights, air rights, or other similar rights, privileges, or attributes with respect to a Borrowing Base Property, including those arising under any zoning or property use ordinance or other Legal Requirements;
(d) All utility services necessary for the use of each Borrowing Base Property and the operation thereof for their intended purpose are available at each Borrowing Base Property;
(e) The current use of each Borrowing Base Property complies in all material respects with all applicable zoning ordinances, regulations, and restrictive covenants affecting such Borrowing Base Property, all use restrictions of any Governmental Authority having jurisdiction have been satisfied;
(f) Except as disclosed in writing to the Administrative Agent, the rent rolls delivered to the Administrative Agent with respect thereof are true, correct and complete in all material respects and the Leases referred to thereon are all valid and in full force and effect; (ii) the Leases (including modifications thereto) are in writing, and there are no oral agreements with respect thereto; (iii) the copies of each of the Leases (if any) delivered to the Administrative Agent are true, correct and complete in all material respects and have not been modified (or further modified); (iv) to the knowledge of any Credit Party, no material defaults exist under any of the Leases by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults that could reasonably be expected to be a Material Property Event; (v) no Credit Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant in writing under any other Leases that individually or in the aggregate could reasonably be expected to be a Material Property Event; (vi) no Credit Party has made any presently effective assignment or pledge part of any of the LeasesBorrowing Base Properties is included or assessed under or as part of another tax lot or parcel, and no part of any other property is included or assessed under or as part of the rents tax lots or parcels comprising any interests therein except to of the Administrative Agent; Borrowing Base Properties.
(vii) no tenant Neither the Borrower nor any of the Guarantors has received any outstanding notice from any insurer or other party has an option or right of first refusal to purchase all or any portion its agent requiring performance of any Borrowing Base Property; (viii) no tenant has the right to terminate any Lease prior to expiration of the stated term of such Lease (except as a result of counterparty breach, casualty, condemnation or other customary basis of a right to terminate); and (ix) no tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits);
(g) No Borrowing Base Property is the subject of any pending or, to any Credit Party’s knowledge, threatened condemnation or material adverse zoning proceeding for which Administrative Agent has not been notified in writing; and
(h) Each Borrowing Base Property complies with the conditions to be included as a Borrowing Base Property under Section 2.23(d)(ii) and, except as previously disclosed to the Administrative Agent in writing, no Exclusion Event work with respect to any such of the Borrowing Base Property has occurredProperties or canceling or threatening to cancel any policy of insurance, and each of the Borrowing Base Properties complies with the material requirements of all of the Borrower’s and the Guarantor’s insurance carriers.
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