Borrowing Base Properties. (a) (i) Borrower shall own at least three (3) Borrowing Base Properties at all times, of which no fewer than two (2) must be located in the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by ▇▇▇▇▇ Travel Research (or a similar successor company designated by Administrative Agent). (b) A Property may cease to qualify as a Borrowing Base Property, but may subsequently regain its status as a Borrowing Base Property as provided in clause (c) below. (c) The Properties approved as Borrowing Base Properties as of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with (i) a certification by the Borrower that such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrower. (d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and ▇▇▇▇▇▇▇-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.
Appears in 3 contracts
Sources: Credit Agreement (Strategic Hotels & Resorts, Inc), Credit Agreement (Strategic Hotels & Resorts, Inc), Credit Agreement (Strategic Hotels & Resorts, Inc)
Borrowing Base Properties. (a1) (i) Borrower shall own With respect to any Net Cash Proceeds realized or received with respect to any Insurance and Condemnation Event at least three (3) Borrowing Base Properties at all times, of which no fewer than two (2) must be located in the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by ▇▇▇▇▇ Travel Research (or a similar successor company designated by Administrative Agent).
(b) A Property may cease to qualify as a Borrowing Base Property, the Net Cash Proceeds shall at the request of Administrative Agent, be paid directly to Administrative Agent, and provided that:
(I) if the Net Cash Proceeds are less than $1,000,000 and there is no Event of Default that remains unwaived or uncured, the Administrative Agent shall release such Net Cash Proceeds to the Borrower and/or the applicable Guarantor to be used for repair or restoration of the applicable Borrowing Base Property;
(II) if the Net Cash Proceeds are in an amount from $1,000,000 up to $4,000,000 and there is no Event of Default that remains unwaived or uncured, the Administrative Agent shall permit such Net Cash Proceeds held by the Administrative Agent to be released to the Borrower or the applicable Guarantor to be used for repair or restoration but may subsequently regain its status as a condition such application upon the following conditions: (A) the restoration or repair will return the Borrowing Base Property to substantially the same condition as provided existed prior to the casualty or condemnation, (B) the Net Cash Proceeds available therefrom (plus additional funds as may be required to be deposited by the Borrower with the Administrative Agent) will be sufficient to complete the required repair or restoration, and (C) the restoration or repair is capable of being completed by the date which is sixty (60) days prior to the then current Revolving Termination Date; and
(III) if the Net Cash Proceeds exceed $4,000,000, the Administrative Agent may permit insurance or condemnation proceeds held by the Administrative Agent to be released to the Borrower or the applicable Guarantor to be used for repair or restoration (provided, that if the Administrative Agent has elected not to release such proceeds to the Borrower, then 100% of the Net Cash Proceeds shall be applied as a principal prepayment of the Loans (or shall Cash Collateralize the Letter of Credit Liabilities or Specified Derivatives Obligations, as applicable) in the manner set forth in clause (cviii) below) upon the following conditions: (A) the deposit with the Administrative Agent of such additional funds which the Administrative Agent determines are needed to pay all costs of the repair or restoration (including, without limitation, taxes, financing charges, insurance and rent during the repair period); (B) the establishment of an arrangement for lien releases and disbursement of funds acceptable to the Administrative Agent (the arrangement contained in this Agreement for disbursing Revolving Loan funds shall be deemed reasonable with respect to disbursement of Net Cash Proceeds); (C) the delivery to the Administrative Agent of plans and specifications for the work, a contract for the work signed by a contractor reasonably acceptable to the Administrative Agent and a cost breakdown for the work, all of which shall be reasonably acceptable to the Administrative Agent; (D) the delivery to the Administrative Agent of evidence acceptable to the Administrative Agent in its reasonable determination (aa) that after completion of the work the income from the Borrowing Base Property will be sufficient to pay all expenses of the Borrowing Base Property; (bb) of the continuation of Leases or execution of new Leases for not less than seventy percent (70%) of the net rentable area covered by Leases immediately prior to the casualty; and (cc) that upon completion of the work, the size, capacity and total value of the Borrowing Base Property will be at least as great as it was before the damage or condemnation occurred, and (E) there is no Event of Default that remains unwaived or uncured. The Borrower hereby acknowledges that the conditions described above are reasonable, and, if such conditions have not been satisfied within one hundred fifty (150) days of receipt by the Administrative Agent of such insurance or condemnation proceeds, then Administrative Agent may apply such Net Cash Proceeds in accordance with clause (viii) below.
(c2) The Properties approved as Borrowing Base Properties as of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties following (whether New Acquisitions, former Development Properties now existing or Properties that had been Borrowing Base Properties but ceased to qualify as suchhereafter arising) are all absolutely and irrevocably assigned by sending written proposals for inclusion the Borrower and each Guarantor to the Administrative Agent together with and, at the request of Administrative Agent, shall be paid directly to Administrative Agent: (i) all awards of damages and all other compensation payable directly or indirectly by reason of a certification condemnation or proposed condemnation for public or private use affecting all or any part of, or any interest in, any Borrowing Base Property or Collateral; (ii) all proceeds of any insurance policies (whether or not expressly required by the Administrative Agent to be maintained by the Borrower that such Property then satisfies the criteria for a or any Subsidiary, including, but not limited to, earthquake insurance and terrorism insurance, if any) payable by reason of loss sustained to all or any part of any Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, Collateral; and (iii) an Acceptable Appraisal all interest which may accrue on any of the proposed Borrowing Base Property foregoing. Subject to applicable law, the Administrative Agent may at its reasonable discretion apply all or any of the proceeds it receives to its expenses in settling, prosecuting or defending any claim and shall apply the remainder in accordance with clause (iv1) a Title Search with respect to such proposed Borrowing Base Propertyabove. The Administrative Agent will make such request may commence, appear in, defend or prosecute any assigned claim or action and materials available may adjust, compromise, settle and collect all claims and awards assigned to the Lenders and will endeavor promptly either Administrative Agent; provided, however, in no event shall the Administrative Agent be responsible for any failure to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (collect any claim or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested award unless caused by the Borrower.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify malfeasance or nonfeasance by Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property its employees or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and ▇▇▇▇▇▇▇-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day periodagents.
Appears in 3 contracts
Sources: First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Borrowing Base Properties. (a) Borrower shall cause the Eligible Real Estate included in the calculation of the Borrowing Base Availability and inclusion as Borrowing Base Properties to at all times satisfy all of the following conditions:
(i) the Eligible Real Estate shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by Borrower or a Subsidiary Guarantor (provided that notwithstanding anything to the contrary in this Agreement, from and after the date of this Agreement, the Borrowing Base Properties shall own only be owned by Subsidiary Guarantors) and leased to a Subsidiary Guarantor that is a TRS Lessee pursuant to an Operating Lease, free and clear of all Liens other than the Liens permitted by §8.2(ix) (provided that with respect to any Real Estate that becomes a Borrowing Base Property on or after the Closing Date, such TRS Lessee shall be a Wholly-Owned Subsidiary of TRS), and such Eligible Real Estate and all assets of the TRS Lessee shall not have applicable to it any negative pledge or restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents);
(ii) none of the Eligible Real Estate shall have any material environmental, structural or other defects, and not be subject to any condemnation proceeding, that in any event would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or finance such property, and such property shall be in compliance with federally mandated flood insurance requirements (including the maintenance of flood insurance if all or any portion of any Building is located within a federally designated flood hazard zone);
(iii) the only assets of such Subsidiary Guarantor (including the TRS Lessee) shall be the Eligible Real Estate included in the calculation of the Borrowing Base Availability and as a Borrowing Base Property together with related fixtures and personal property;
(iv) no strike, lockout, labor dispute, embargo, injunction or other proceeding has occurred which causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities of the Borrower or any Guarantor at such Borrowing Base Property;
(v) to qualify as a Tier I Property:
(A) such Eligible Real Estate is used as a limited service, select service or full service, in each case of upscale or midscale quality or better;
(B) such Eligible Real Estate is (1) managed by a third party manager approved by the Agent; and (2) operated under a Management Agreement reasonably satisfactory to the Agent;
(C) such Eligible Real Estate is operated under an Approved Brand pursuant to a Franchise Agreement approved by Agent;
(D) such Eligible Real Estate was first acquired by such Subsidiary Guarantor after September 30, 2015 (other than the Hilton Garden Inn located in ▇▇▇▇▇▇, Maryland); and
(E) the construction of the Hotel Property on such Eligible Real Estate was either substantially completed or has undergone a complete renovation consistent with the applicable PIP within fifteen (15) years of the date such Eligible Real Estate is first included in the calculation of Borrowing Base Availability;
(vi) with respect to any Tier II Property, such Eligible Real Estate is managed by a third-party manager approved by the Agent and operated under a Management Agreement reasonably satisfactory to Agent;
(vii) prior to the occurrence of the Qualified Capital Raise, all of the hotel rooms in the Borrowing Base Properties must be open for business, have at least one year of operating history and not under Material Renovation, and not more than ten percent (10%) of the aggregate hotel rooms in the Borrowing Base Properties may be under any Renovation (but for the avoidance of doubt, none may be under Material Renovation);
(viii) from and after the occurrence of the Qualified Capital Raise:
(A) at least ninety percent (90%) of the aggregate hotel rooms in the Borrowing Base Properties must be open for business, not under Material Renovation, and have at least one year of operating history; and
(B) not more than ten percent (10%) of the total Borrowing Base Availability shall be attributable to Hotel Properties which are recently-completed developments or assets undergoing Material Renovation, but which assets included in the calculation of Borrowing Base Availability shall in any event have at least three (3) Borrowing Base Properties at all timesmonths of operating history (notwithstanding the foregoing, a failure to satisfy the requirements of which no fewer than two this clause (2viii) must be located in the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, shall not result in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by ▇▇▇▇▇ Travel Research (or a similar successor company designated by Administrative Agent).
(b) A Property may cease to qualify Real Estate not being included as a Borrowing Base Property, but may subsequently regain its status any such Borrowing Base Availability in excess of such limitation shall be excluded for purposes of calculating Borrowing Base Availability, the Tier I Borrowing Base Value and the Tier II Borrowing Base Value and the associated Net Operating Income and Adjusted Net Operating Income corresponding thereto shall be similarly excluded);
(ix) no Person other than the Borrower, the REIT or another Subsidiary Guarantor (and excluding for the purposes hereof ownership of other Persons in the Borrower or the REIT) has any direct or indirect ownership of any legal, equitable or beneficial interest in such Subsidiary Guarantors, and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor shall be subject to any Lien (other than Liens in favor of Agent);
(x) no more than twenty percent (20%) of the total Borrowing Base Availability shall be attributable to any single Tier I Property (notwithstanding the foregoing, a failure to satisfy the requirements of this clause (x) shall not result in any such Real Estate not being included as a Borrowing Base Property as provided Property, but any such Borrowing Base Availability in excess of such limitation shall be excluded for purposes of calculating Borrowing Base Availability, the Tier I Borrowing Base Value and the Tier II Borrowing Base Value and the associated Net Operating Income and Adjusted Net Operating Income corresponding thereto shall be similarly excluded);
(xi) no more than fifteen percent (15%) of the total Borrowing Base Availability shall be attributable to Tier I Properties which are subject to Ground Leases (notwithstanding the foregoing, a failure to satisfy the requirements of this clause (cxi) belowshall not result in any such Real Estate not being included as a Borrowing Base Property, but any such Borrowing Base Availability in excess of such limitation shall be excluded for purposes of calculating Borrowing Base Availability, the Tier I Borrowing Base Value and the Tier II Borrowing Base Value and the associated Operating Income and Adjusted Net Operating Income corresponding thereto shall be similarly excluded);
(xii) no more than twenty percent (20%) of the total Borrowing Base Availability shall be attributable to Tier I Properties located within the same Submarket (notwithstanding the foregoing, a failure to satisfy the requirements of this clause (xii) shall not result in any such Real Estate not being included as a Borrowing Base Property, but any such Borrowing Base Availability in excess of such limitation shall be excluded for purposes of calculating Borrowing Base Availability, the Tier I Borrowing Base Value and the Tier II Borrowing Base Value and the associated Net Operating Income and Adjusted Net Operating Income corresponding thereto shall be similarly excluded); and
(xiii) such Eligible Real Estate has not been removed from the calculation of the Borrowing Base Availability pursuant to §5.4 or §7.20(c) or (d). Notwithstanding the foregoing, the provisions of §7.20(a)(x), (xi) and (xii) and §9.7 shall not be applicable until the date that is fifteen (15) months following the occurrence of the Qualified Capital Raise and then shall be applicable at all times thereafter.
(b) The Borrower shall, and shall cause each Subsidiary Guarantor to:
(i) operate each Borrowing Base Property in compliance with Applicable Law in all material respects;
(ii) promptly perform and/or observe (or cause to be performed and/or observed) in all material respects the covenants and agreements required to be performed and observed by it under the Material Contracts to which it is a party and do all things necessary to preserve and to keep unimpaired their rights thereunder;
(iii) enforce in all respects the performance and observance of all of the material covenants and agreements required to be performed or observed by the other parties to each Material Contract;
(iv) promptly deliver to the Agent a copy of each PIP, and any other material written notice or report received by it or to it under any Management Agreement or Franchise Agreement;
(v) maintain Inventory at the applicable Borrowing Base Property in amounts reasonably required to meet the standards from time to time required by the applicable Manager and Franchisor; and
(vi) maintain all Licenses required to operate the applicable Borrowing Base Property in full force and effect and promptly comply with all material conditions thereof.
(c) The Properties approved as In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Borrowing Base Properties as 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 Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with Availability unless and until (i) a certification by any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Borrower that Agent shall receive evidence satisfactory to the Agent of the value of such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver real estate following such repair or discretionary approval is required with respect to any element thereof, so specifying, restoration (both at such time and prospectively) or (ii) reasonable supporting documentation with respect the Agent shall receive evidence satisfactory to each the Agent (which evidence may include the availability of business interruption insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation of the elements Borrowing Base Availability, then the Agent may in good faith reduce the Borrowing Base Availability attributable thereto based on such damage until such time as the Agent receives evidence satisfactory to the Agent that the value of such certification real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrowercondemnation.
(d) Upon any asset ceasing to qualify to be included in the calculation of the Borrowing Base Availability, such asset shall no longer be included in the calculation of the Borrowing Base Availability unless otherwise approved in writing by the Required Lenders. Within five (5) Business Days of any such disqualification, the Borrower shall promptly after any Responsible Officer deliver to the Agent a certificate reflecting such disqualification, together with the identity of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) disqualified asset, a statement as to whether any material structural defects Default or Environmental Occurrence affecting Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Property or (ii) Availability attributable to such asset. Simultaneously with the occurrence delivery of any casualty event affecting a the items required pursuant above, the Borrower shall deliver to the Agent an updated Borrowing Base PropertyCertificate demonstrating, after giving effect to such removal or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such eventdisqualification, compliance with the affected Borrowing Base Property will immediatelyconditions and covenants contained in §§7.20, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel 9.1 and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and ▇▇▇▇▇▇▇-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period9.
Appears in 1 contract
Borrowing Base Properties. (a) The Eligible Real Estate and Eligible Notes Receivable included in the calculation of the Borrowing Base Value shall at all times satisfy all of the following conditions:
(i) Borrower the Eligible Real Estate shall own at least three be owned 100% in fee simple or leased under a ground lease acceptable to Agent in its reasonable discretion by a Subsidiary Guarantor, and the Eligible Notes Receivable shall be owned 100% by a Subsidiary Guarantor, in each case free and clear of all Liens other than the Liens permitted in §8.2(i) and (3) Borrowing Base Properties at all timesiv), and such Eligible Real Estate and Eligible Notes Receivable shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of which no fewer than two such property (2) must be located including any restrictions contained in the United States of America; any applicable organizational documents);
(ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be none of the Eligible Real Estate or the real estate subject to such Eligible Notes Receivable shall have any material title, survey, environmental, structural or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debtdefects that would give rise to a materially adverse effect as to the value, use of or (B) any Lien other than a Permitted Borrowing Base Lien, ability to sell or refinance such property;
(iii) no more The only asset of such Subsidiary shall be Eligible Real Estate or an Eligible Note Receivable included in the calculation of the Borrowing Base Value;
(iv) such Eligible Real Estate is self-managed by the Subsidiary Guarantor or is managed by an independent third party pursuant to a Management Agreement;
(v) with respect to Eligible Note Receivables, the outstanding principal balance of such Eligible Note Receivable shall not exceed seventy-five percent (75%) of the Appraised Value as most recently determined under this Agreement of the real property subject to such Eligible Note Receivable;
(vi) with respect to each Eligible Note Receivable, the underlying real estate would meet all of the requirements that apply to Eligible Real Estate being included within the calculation of the Borrowing Base Value if such property were owned by, rather than mortgaged to, the applicable Subsidiary Guarantor;
(vii) the term of each lease (without regard to extension options) at such Eligible Real Estate or real estate subject to an Eligible Note Receivable must exceed the then effective Maturity Date by not less than three (3) Properties located outside of years; provided that with respect to (A) the United State of America may qualify lease with Elster Electric relating to the property commonly known as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by ▇▇ ▇▇▇▇▇ Travel Research (or a similar successor company designated by Administrative Agent).
(b) A Property may cease to qualify as a Borrowing Base Property▇▇▇▇▇▇ ▇▇▇▇, but may subsequently regain its status as a Borrowing Base Property as provided in clause (c) below.
(c) The Properties approved as Borrowing Base Properties as of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with (i) a certification by the Borrower that such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrower.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and ▇▇▇▇▇▇▇-like manner , North Carolina, which lease expires on October 31, 2010, and the lease to Yankee Candle relating to the property commonly known as 7▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, Massachusetts, which expires on June 30, 2010, such leases shall not be required to comply with the provisions of this clause (vii) until June 30, 2007, and (B) with respect to the lease to Work Flow Management relating to the property commonly known as H▇▇▇▇▇▇▇▇, such lease shall not be required to comply with the terms of this clause (vii);
(viii) each Eligible Real Estate or property subject to an Eligible Note Receivable shall be leased to a single tenant which is an Eligible Tenant, and each such tenant under a lease at such Eligible Real Estate or real estate subject to an Eligible Note Receivable must be in compliance with its payment obligations and material compliance with all other obligations under its lease, and not subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation proceeding;
(ix) no Eligible Real Estate or real estate subject to Eligible Notes Receivable which are subject to a lease or leases to any single tenant or any Affiliate thereof shall account for more than twenty percent (20%) of the Borrowing Base Value (for the purposes hereof, tenants shall not be considered Affiliates of each other solely by virtue of having common ownership by an equity fund provided that their financial results are not consolidated with a common parent entity);
(x) such Eligible Real Estate or real estate which is subject to an Eligible Note Receivable shall not be vacant (for example, such tenant is no longer conducting business from such property); provided that at any one time not more than two (2) separate parcels of Eligible Real Estate or real estate which is subject to an Eligible Note Receivable included in the calculation of the Borrowing Base Value may be attributable to such real estate which is vacant provided that (1) the tenants therein are paying rent and not otherwise in default of their obligations under their lease, (2) during the period of such vacancy, such real estate shall be professionally managed by a firm pursuant to a Management Agreement approved in writing in advance by Agent, and (3) any such vacant property shall be reoccupied by such tenant or leased to a new tenant (such new tenant and its lease to be approved by Agent) within one hundred twenty twelve (12012) daysmonths of the date such property first became vacant); and
(xi) no more than fifteen percent (15%) of the Borrowing Base Value shall be attributable to Eligible Notes Receivable.
(b) In the event that all or any material portion of any Eligible Real Estate or any real property subject to an Eligible Note Receivable included in the calculation of the Borrowing Base Value shall be damaged in any material respect or taken by condemnation, then such Property will property shall no longer be included in the calculation of the Borrowing Base Value 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 cease be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate or real property subject to an Eligible Note Receivable included in the calculation of the Borrowing Base Value, then the Required Lenders may in good faith reduce the Borrowing Base Value attributable thereto based on such damage until such time as the Required Lenders receive evidence satisfactory to the Required Lenders that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Borrowing Base Value, such asset shall no longer be included in the calculation of the Borrowing Base Value 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 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 Borrowing Base Property for so long as Value attributable to such asset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent an updated Borrowing Base Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day periodcovenants contained in §5.4 and §7.18.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Gladstone Commercial Corp)
Borrowing Base Properties. (a) (i) Borrower shall own at least three (3) Borrowing Base Properties at Schedule 2 contains a correct and complete list of all times, of which no fewer than two (2) must be located in the United States of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by ▇▇▇▇▇ Travel Research (or a similar successor company designated by Administrative Agent).
(b) A Property may cease to qualify as a Borrowing Base Property, but may subsequently regain its status as a Borrowing Base Property as provided in clause (c) below.
(c) The Properties approved as Borrowing Base Properties as of the Closing Date are set forth Effective Date, including applicable ownership information. With respect to each Borrowing Base Property from time to time:
(a) no Borrowing Base Property is 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 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 Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been such Borrowing Base Properties but ceased to qualify are located within any such area, the Borrower or applicable Subsidiary Guarantor has obtained and will maintain through the Maturity Date the flood insurance prescribed in Section 8.5 hereof (including Schedule 8.5);
(b) each of the Borrowing Base Properties and the present use and occupancy thereof are in material compliance with all 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 such) by sending written proposals for inclusion disclosed on the environmental assessments delivered to the Administrative Agent together with (i) a certification and accepted by the Borrower that such Property then satisfies Administrative Agent and the criteria for a Requisite Lenders pursuant to this Agreement or as otherwise permitted under the definition of Eligible Property) and other Applicable Laws;
(c) each of the Borrowing Base Property or, if a waiver Properties is served by all utilities required for the current or discretionary approval is required with respect to any element contemplated use thereof, so specifying, ;
(iid) reasonable supporting documentation with respect all public roads and streets necessary for service of and access to each of the elements Borrowing Base Properties 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;
(e) the Borrower is not aware of any material latent or patent structural or other significant deficiency of the Borrowing Base Properties;
(f) each of the Borrowing Base Properties is free of damage and waste that would materially and adversely affect the value of such certification Borrowing Base Property, is in good condition and repair subject to any items set forth in any property condition report delivered to and approved by the Administrative Agent and the Requisite Lenders or requestas otherwise permitted under the definition of Eligible Property, and to the Borrower’s knowledge, there is no deferred maintenance other than ordinary wear and tear;
(iiig) an Acceptable Appraisal each of the proposed 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 insurance required by Section 8.5;
(h) to the 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 (ivii) a Title Search in material compliance with all Applicable Laws with respect to such proposed systems;
(i) all improvements on the Borrowing Base Property. The Administrative Agent will make such request Properties lie within the boundaries and materials available 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 Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies knowledge, no improvements on adjoining properties encroach upon the criteria and is deemed a Borrowing Base Property (Properties or specify upon easements benefiting the reason it is unable to so accept) Borrowing Base Properties other than encroachments that do not materially adversely affect the use or (B) solicit the consent or waiver occupancy of the Required Lenders with respect to any matter so requested by the Borrower.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base Property, or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and ▇▇▇▇▇▇▇-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.Properties;
Appears in 1 contract
Sources: Credit Agreement (HC Government Realty Trust, Inc.)
Borrowing Base Properties. (a) (i) As at the end of any Fiscal Quarter or any other date of measurement, the Borrower shall own at least three not permit Unsecured Consolidated Total Indebtedness (3exclusive of Accounts Payable, but including amounts outstanding under the Revolving Credit Loans and Existing Revolving Credit Agreement Letters of Credit after giving effect to loan requests made pursuant to the Existing Revolving Credit Agreement) to equal or exceed 55% of the aggregate Borrowing Base Properties at all timesValue, of which no fewer than two (2) must be located PROVIDED that in the United States event that Consolidated Total Indebtedness exceeds 60% of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties 61 Consolidated Total Adjusted Asset Value at any time, the Borrower shall not permit the Unsecured Consolidated Total Indebtedness (exclusive of Accounts Payable, but including the outstanding principal amount of Revolving Credit Loans and (ivthe aggregate undrawn face amount of all outstanding Existing Revolving Credit Agreement Letters of Credit after giving effect to loan requests pursuant to the Existing Revolving Credit Agreement) no to equal or exceed 50% of the aggregate Borrowing Base Value. Except for the Exception Property, not more than two (2) 15% of the Borrowing Base Properties may include a condominium or timeshare component or otherwise Value shall be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in derived from any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) single Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotelsProperty. One Borrowing Base Property (the "Exception Property") (but not more than one property), which property can differ from time to time, as designated by Borrower) can constitute up to 25% of the Borrowing Base Value, PROVIDED that the Exception Property (i) must be CBD Property, and (ii) may not be a hotel property. Notwithstanding anything in this Section 7.6(b) to the contrary, as of the Closing Date, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Travel Research (or shall be considered compliant with this Section 7.6(b) and shall be designated the Exception Property. It is further acknowledged that ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ may constitute up to 46% of the Borrowing Base Value, PROVIDED that ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ must at all times meet the requirements of a similar successor company designated by Administrative Agent).
(b) A Borrowing Base Property may cease to qualify and must be a CBD Property. The Borrower certifies that, as of the date hereof, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ is an Unencumbered Asset and meets each of the Borrowing Base Conditions and the Borrower hereby designates ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ as a Borrowing Base Property, but may subsequently regain its status and on that basis the Lead Lenders agree that ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ will be included in the Borrowing Base as of the effective date above. The Borrower and the Administrative Agent hereby designate ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ as a CBD Property. For purposes of determining the Borrowing Base Value for this Section 7.6, the Net Operating Income of any Borrowing Base Property as provided in clause (c) below.
(c) The Properties approved as acquired during such prior Fiscal Quarter shall be adjusted on a pro-forma basis by projecting the Net Operating Income generated by each such acquired Borrowing Base Properties as Property for the portion of the Closing Date are set forth on Schedule II heretoquarter during which it was owned or ground leased by the Borrower over the entire quarter. Notwithstanding the Borrowing Base Conditions, in the event that the Borrower may propose desires to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been any Unencumbered Asset in the Borrowing Base Properties but ceased that does not meet one or more of the Borrowing Base Conditions, any such Unencumbered Asset shall only be permitted to qualify as suchbe included in the Borrowing Base in the event that (i) by sending written proposals for inclusion the Borrower has submitted to the Administrative Agent together with (i) a certification by compliance certificate in the Borrower that such Property then satisfies form of EXHIBIT D-5, modified to reflect the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements of such certification or request, (iii) an Acceptable Appraisal non-conformity of the proposed Borrowing Base Property Property, and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrower.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base PropertyRequired Banks have provided the Borrower with written approval, or (iii) any other event or occurrence which would cause a Borrowing Base Property in their sole discretion, for such non-conforming Unencumbered Asset to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided be included in the following sentenceBorrowing Base. In Upon any such written approval by the event that structural defectsRequired Banks, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will Unencumbered Asset shall be promptly and diligently resolved in a good and ▇▇▇▇▇▇▇-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as considered a Borrowing Base Property for so long all purposes hereunder, PROVIDED that on the date of inclusion of any such Unencumbered Asset in the Borrowing Base (and thereafter in accordance with the terms of this Agreement), such Unencumbered Asset is otherwise in compliance with the Borrowing Base Conditions other than with respect to the non-conformity as certified by the Borrower and approved by the Required Banks in the compliance certificate submitted by the Borrower under clause (i) of the preceding sentence, and PROVIDED, FURTHER that there is otherwise no Default or Event of Default existing upon the date of, or arising as a result of, the inclusion of such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day periodUnencumbered Asset in the Borrowing Base.
Appears in 1 contract
Borrowing Base Properties. (a) (i) As at the end of any fiscal quarter or any other date of measurement, the Borrower shall own at least three not permit Unsecured Consolidated Total Indebtedness (3exclusive of Accounts Payable, but including amounts outstanding under any Loans and Letters of Credit after giving effect to Loan Requests) to equal or exceed 55% of the aggregate Borrowing Base Properties at all timesValue, of which no fewer than two (2) must be located PROVIDED that in the United States event that Consolidated Total Indebtedness exceeds 60% of America; (ii) no Borrowing Base Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties Consolidated Total Adjusted Asset Value at any time, the Borrower shall not permit the Unsecured Consolidated Total Indebtedness (exclusive of Accounts Payable, but including the outstanding principal amount of all Loans and (ivthe aggregate undrawn face amount of all outstanding Letters of Credit after giving effect to Loan Requests) no more than two (2) to equal or exceed 50% of the aggregate Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by ▇▇▇▇▇ Travel Research (or a similar successor company designated by Administrative Agent)Value.
(b) A Property may cease to qualify as a Except for the Exception Property, not more than 15% of the Borrowing Base Value shall be derived from any single Borrowing Base Property, but may subsequently regain its status as a . One Borrowing Base Property (the "Exception Property") (but not more than one property), which property can differ from time to time, as provided in clause designated by Borrower) can constitute up to 25% of the Borrowing Base Value, PROVIDED that the Exception Property (ci) belowmust be CBD Property, and (ii) may not be a hotel property.
(c) The Properties approved as For purposes of determining the Borrowing Base Properties as Value for this Section 10.6, the Net Operating Income of any Borrowing Base Property acquired during such prior fiscal quarter shall be adjusted on a pro-forma basis by projecting the Net Operating Income generated by each such acquired Borrowing Base Property for the portion of the Closing Date are set forth on Schedule II hereto. quarter during which it was owned or ground-leased by the Borrower may propose over the entire quarter.
(d) Notwithstanding the Borrowing Base Conditions, in the event that the Borrower desires to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been any Unencumbered Asset in the Borrowing Base Properties but ceased that does not meet one or more of the Borrowing Base Conditions, any such Unencumbered Asset shall only be permitted to qualify as such) by sending written proposals for inclusion to be included in the Administrative Agent together with Borrowing Base in the event that (i) a certification by the Borrower that such Property then satisfies has submitted to the criteria for Agent a Borrowing Base Property orcompliance certificate in the form of EXHIBIT C-5, if a waiver or discretionary approval is required with respect modified to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of reflect the elements of such certification or request, (iii) an Acceptable Appraisal non-conformity of the proposed Borrowing Base Property Property, and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable to so accept) or (B) solicit the consent or waiver of the Required Lenders with respect to any matter so requested by the Borrower.
(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a Borrowing Base Property or (ii) the occurrence of any casualty event affecting a Borrowing Base PropertyMajority Banks have provided the Borrower with written approval, or (iii) any other event or occurrence which would cause a Borrowing Base Property in their sole discretion, for such non-conforming Unencumbered Asset to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, as of the occurrence, cease to qualify as a Borrowing Base Property hereunder, except to the extent provided be included in the following sentenceBorrowing Base. In Upon any such written approval by the event that structural defectsMajority Banks, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will Unencumbered Asset shall be promptly and diligently resolved in a good and ▇▇▇▇▇▇▇-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as considered a Borrowing Base Property for so long all purposes hereunder, PROVIDED that on the date of inclusion of any such Unencumbered Asset in the Borrowing Base (and thereafter in accordance with the terms of this Agreement), such Unencumbered Asset is otherwise in compliance with the Borrowing Base Conditions other than with respect to the non-conformity as certified by the Borrower and approved by the Majority Banks in the compliance certificate submitted by the Borrower under clause (i) of the preceding sentence, and PROVIDED, FURTHER that there is otherwise no Default or Event of Default existing upon the date of, or arising as a result of, the inclusion of such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day periodUnencumbered Asset in the Borrowing Base.
Appears in 1 contract
Borrowing Base Properties. (a) (i) 10.1.1 At all times, the Borrower shall own at least three (3) maintain the Borrowing Base Properties at all times, in accordance with this Article 10 and the other terms and conditions of which no fewer than two (2) must be located the Loan Documents.
10.1.2 In addition to the other requirements that are set forth in the United States definition of America; (ii) no “Borrowing Base Property,” in order for a Real Property and no Capital Stock in any Borrowing Base Property Owner shall at any time be subject to or encumbered by (A) any Indebtedness other than Permitted Borrowing Base Debt, or (B) any Lien other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by ▇▇▇▇▇ Travel Research (or a similar successor company designated by Administrative Agent).
(b) A Property may cease to qualify as a Borrowing Base Property, but may subsequently regain it shall comply with the following conditions at all times:
(a) Such Borrowing Base Property shall be wholly owned by a Borrower that complies with the covenants and provisions of this Agreement relating to Borrowers; provided, however, that a Borrowing Base Property may, with Lender’s written consent, be leased to a Borrower under an Approved Ground Lease;
(b) The representations and warranties contained in Article 3 with respect to Borrowing Base Properties shall at all times be true and correct with respect to such Borrowing Base Property and such Borrowing Base Property shall be in compliance with the covenants set forth in Section 10.3;
(c) Such Borrowing Base Property shall be an income producing, multi-family, mixed-use, retail, distribution, parking, flex, industrial or office property, provided that parking facilities shall be permitted only if operated by a third-party operator and distribution facilities shall be permitted only to the extent they meet the conditions set forth in clause (e) of this Section 10.1.2;
(d) At least eighty percent (80%) of the (x) units in any multi-family Borrowing Base Property, and (y) net rentable square footage of any other type of Borrowing Base Property (other than a parking facility), shall be subject to executed Leases from tenants in occupancy who are not in default beyond the expiration of all applicable notice and grace periods under their Lease and not in bankruptcy (the “Occupancy Rate”); provided, however, that if (A) on any date, the Occupancy Rate is less than eighty percent (80%), there shall be a grace period of two (2) fiscal quarters to increase such occupancy provided that (i) Borrower delivers written notice of the failure to comply with such occupancy requirement within three (3) Business Days after a Responsible Officer of Borrower obtains knowledge of such failure, and (ii) at all times during such grace period, the Occupancy Rate does not fall below seventy percent (70%) at any time and (B) on any date, the Occupancy Rate is less than seventy percent (70%), there shall be a grace period of two (2) fiscal quarters (which shall be concurrent with and not in addition to the two (2) fiscal quarter grace period referred to in clause (A), above) to increase such occupancy provided that (i) Borrower delivers written notice of the failure to comply with such occupancy requirement within three (3) Business Days after a Responsible Officer of Borrower obtains knowledge of such failure, (ii) at all times during such grace period, the Occupancy Rate does not fall below fifty percent (50%) at any time, and (iii) during the pendency of such grace period, the percentage applicable in calculating the Value-Based Borrowing Base Limit for the applicable Borrowing Base Property shall be reduced by fifty percent (50%); thereafter, and in the event any Borrowing Base Property has an Occupancy Rate below fifty percent (50%) at any time, such Borrowing Base Property shall be removed from the Borrowing Base pursuant to Section 9.03;
(e) If such Borrowing Base Property is a distribution facility, it shall be an Investment Grade Borrowing Base Property having at least eight (8) years remaining on the term of the Lease to the applicable Investment Grade Tenant at the time such facility is added to the Borrowing Base (excluding any extension options) and where the applicable Investment Grade Tenant shall be in occupancy, not in default beyond the expiration of all applicable notice and grace periods under its status Lease and not in bankruptcy;
(f) If such Borrowing Base Property is a Single Tenant Asset, then the remaining Lease term related thereto shall be no less than six (6) years (excluding any extension options);
(g) An Appraisal shall be required for each Borrowing Base Property during the term of this Agreement as follows: (A) within six (6) months prior to the Effective Date (with respect to each initial Borrowing Base Property that is added to the Borrowing Base upon the Effective Date, and (B) within six (6) months prior to the date that any Borrowing Base Property is added to the Borrowing Base in accordance with the Loan Documents (which respect to Borrowing Base Properties added after the Effective Date), and that in each case that is acceptable to Lender in its reasonable discretion, subject to the provisions of Sections 10.1.2(viii) and (ix);
(h) For purposes of determining the Appraised Value of any Borrowing Base Property hereunder, the most recent Appraisal thereof obtained by in accordance with the terms hereof shall govern the determination of the Appraised Value thereof; provided, however that if a new Appraisal is not required to be obtained for such Borrowing Base Property pursuant to Section 10.1.2 until such time as the new Appraisal shall have been obtained in accordance with this Agreement, then the Borrowing Base Asset Value of such Borrowing Base Property shall equal the lesser of the Acquisition Cost of such Borrowing Base Property or the Estimated Value thereof.
(i) The survey for such Borrowing Base Property delivered to the Lender in connection with this Agreement shall be prepared in accordance with the 2011 Minimum Standard Detail Requirements for ALTA/ASM Land Title Surveys. Except for those matters reflected on such survey or in the title policy for such Borrowing Base Property delivered to the Lender in connection with this Agreement or as otherwise disclosed to the Lender, as of the date such Real Property is accepted as a Borrowing Base Property as provided in clause (c) below.
(c) The Properties approved as Property, there shall not be any construction or commencement of construction on such Borrowing Base Properties Property of any new external structures, or additions or extensions thereto, or other external improvements, whether to existing structures or not. Except as of may be disclosed on the Closing Date are set forth on Schedule II hereto. Borrower may propose surveys delivered pursuant to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been this Agreement and in the title policy for such Borrowing Base Properties but ceased to qualify as such) by sending written proposals for inclusion to the Administrative Agent together with Property: (i) a certification by none of the Borrower that material improvements comprising part of such Property then satisfies the criteria for a Borrowing Base Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of shall be outside the elements boundaries of such certification or request, (iii) an Acceptable Appraisal of the proposed Borrowing Base Property and (iv) a Title Search with respect to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a Borrowing Base Property (or specify the reason it is unable building restriction or setback lines applicable thereto); (ii) no material improvements on adjoining properties shall encroach upon such Borrowing Base Property; and (iii) no material improvements comprising part of such Borrowing Base Property shall encroach upon or violate any easements or any other encumbrance upon such Borrowing Base Property, in each case other than minor encumbrances which could not reasonably be expected to so accepthave a (x) or (B) solicit the consent or waiver of the Required Lenders material adverse effect with respect to any matter so requested by the Borrower.
(d) Borrower shall promptly after any Responsible Officer financial condition or the operations of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting a such Borrowing Base Property or Property, (iiy) material adverse effect on the occurrence Borrowing Base Asset Value of any casualty event affecting a such Borrowing Base Property, or (iiiz) material adverse effect on the ownership of such Borrowing Base Property.
(j) All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any other event or occurrence which would cause a Credit Party under applicable legal requirements currently in effect in connection with the transfer of such Borrowing Base Property to cease the Borrower, any transfer of a controlling interest in the Borrower or the formation of the REIT, as applicable, shall have been paid or will be paid prior to qualify as suchdelinquency. In such eventAll mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Credit Party under applicable legal requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the affected Mortgage, shall have been paid prior to delinquency.
(k) The Borrower shall have delivered to Lender copies of all Leases and all unrecorded easement agreements, reciprocal easement agreements, management agreements and material agreements in Borrower’s possession or custody which affect in any material respect the Borrower’s interest in such Borrowing Base Property.
(l) Borrower shall have received no notice of any condemnation proceeding involving such Borrowing Base Property will immediatelyor any portion thereof or parking facility used in connection therewith, as nor shall any portion of such Borrowing Base Property or any parking facility used in connection therewith be damaged due to fire or other casualty, except those proceedings or casualties that could not reasonably be expected to materially interfere with the occurrence, cease current use and value of such Borrowing Base Property or to cause such property to otherwise no longer qualify as a Borrowing Base Property.
(m) Such Borrowing Base Property hereundershall have adequate rights of access to public ways and is currently served by adequate electric, except gas, water, sewer, sanitary sewer and storm drain facilities. All public utilities necessary to the extent provided use and enjoyment of such Borrowing Base Property as intended to be used and enjoyed shall be located in the following sentence. In public right-of-way abutting such Borrowing Base Property or in private easements or license areas benefitting such Borrowing Base Property.
(n) No Credit Party shall have suffered, permitted or initiated the event that structural defects, Environmental Occurrence or casualty result in joint assessment of such Borrowing Base Property with any other real property constituting a tax lot separate and apart from the temporary closure tax lot comprising such Borrowing Base Property.
(for repair, restoration or remediationo) of less than 25% As of the rooms in such hotel and provided that the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and ▇▇▇▇▇▇▇-like manner within one hundred twenty (120) days, then such Property will not cease to qualify date of its inclusion as a Borrowing Base Property, such Borrowing Base Property, including all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, shall be in good condition, order and repair in all material respects subject to reasonable and customary wear and tear; and there shall exist no structural or other material defects or damages in such Borrowing Base Property, whether latent or otherwise, and no Credit Party shall have received written notice from any insurance company or bonding company of any defects or inadequacies in such Borrowing Base Property, or any part thereof, which would, in either case, adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.
(p) The Borrower shall have delivered to the Lender a true and correct copy of the Management Agreement that is in effect with respect to such Borrowing Base Property. The Management Agreement with respect to such Borrowing Base Property for so long delivered to the Lender shall be the only Management Agreement related to such Borrowing Base Property, and shall be in full force and effect with no default or event of default, in either case beyond all applicable notice and grace periods, existing thereunder.
(q) To the knowledge of Borrower, no portion of such Borrowing Base Property shall have been purchased with proceeds of any illegal activity and no part of the proceeds of any Credit Extension will be used in connection with any illegal activity.
(r) The Borrowing Base Property must be located in New York, Connecticut, New Jersey, Massachusetts, Rhode Island, Delaware, Maryland, Virginia, Pennsylvania, Vermont, New Hampshire and Maine.
10.1.3 The Borrower hereby covenants and agrees with respect to any Borrowing Base Property as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.follows:
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Sources: Loan Agreement (GTJ REIT, Inc.)
Borrowing Base Properties. (a) Requirements for an Investment Property to be Included as a Borrowing Base Property. Prior to any Investment Property being included as a Borrowing Base Property (and, in the case of the requirements set forth in clauses (iii) through (xi) below, at all times that such Investment Property is a Borrowing Base Property as provided in Section 2.19(b)), each of the following requirements shall have been satisfied with respect to such Investment Property (such requirements being referred to herein as the “Borrowing Base Eligibility Criteria”):
(i) Borrower The Borrowers shall own at least three (3) have provided the Administrative Agent with a written request for such Investment Property to be included as a Borrowing Base Properties at all timesProperty, which request shall be accompanied by a Borrowing Base Proposal Package with respect to such Investment Property.
(ii) Within ten (10) Business Days after receipt of the Borrowing Base Proposal Package, the Administrative Agent shall give notice to the Borrowers of whether the Administrative Agent has approved such proposed Investment Property as a Borrowing Base Property; provided, that in case of an Investment Property that is subject to an Existing NY Mortgage in respect of which no fewer than two a Mortgage Debt Assignment has been requested by the Borrowers in accordance with Section 2.03(b), any such approval of such Investment Property as a Borrowing Base Property may be conditioned upon the consummation of such Mortgage Debt Assignment. The Administrative Agent shall not unreasonably withhold such approval so long as such proposed Borrowing Base Property satisfies all of the Borrowing Base Eligibility Criteria. Notwithstanding the foregoing, the failure of any proposed Borrowing Base Property to comply with one or more of the Borrowing Base Eligibility Criteria or the other requirements of this Section 2.19 shall not preclude the addition of such proposed Investment Property as a Borrowing Base Property so long as the Required Lenders have expressly consented to the addition of such proposed Investment Property as a Borrowing Base Property notwithstanding the failure to satisfy such conditions or requirements, as applicable.
(2iii) Such Investment Property shall be used primarily for office and/or retail purposes.
(iv) The Affiliated Investor that owns such Investment Property (or, if applicable, that is the lessee under an Eligible Ground Lease in respect of such Investment Property) shall be a Wholly-Owned Subsidiary of ESR OP, and all of the Equity Interests of such Affiliated Investor (together with all of the Equity Interests of any direct or indirect Subsidiary of ESR OP that owns any Equity Interests of such Affiliated Investor) shall be pledged as Collateral in favor of the Administrative Agent, for the benefit of the Secured Parties, pursuant to the Collateral Documents; provided, that if at any time the Exemption Conditions exist with respect to any Subsidiary that directly or indirectly owns any Equity Interests of such Affiliated Investor, such Subsidiary shall not be required to pledge the Equity Interests it owns in such Affiliated Investor or in any direct or indirect parent thereof.
(v) The Affiliated Investor that owns such Investment Property (or, if applicable, that is the lessee under an Eligible Ground Lease in respect of such Investment Property) shall be a Subsidiary Guarantor or a Borrower, and each Subsidiary of ESR OP that directly or indirectly owns any Equity Interests in such Affiliated Investor shall be a Borrower or Subsidiary Guarantor; provided, that if at any time the Exemption Conditions exist with respect to (x) the Affiliated Investor that owns such Investment Property, such Affiliated Investor shall not be required to be a Subsidiary Guarantor or Borrower or (y) any Subsidiary of ESR OP that directly or indirectly owns any Equity Interests of such Affiliated Investor, such Subsidiary shall not be required to be a Subsidiary Guarantor or Borrower.
(vi) The Affiliated Investor that owns such Investment Property (or, if applicable, that is the lessee under an Eligible Ground Lease in respect of such Investment Property) must be organized under the laws of, and have its principal place of business and chief executive office located in, the United States of America, any State thereof or the District of Columbia.
(vii) Such Investment Property shall be located in the United States of America; .
(iiviii) no Borrowing Base Such Investment Property shall be free and no Capital Stock clear of all negative pledges and/or encumbrances or restrictions on the ability of the Affiliated Investor that owns or leases such Investment Property to transfer or encumber such Investment Property or any income therefrom or proceeds thereof (other than any such encumbrances or restrictions contained in the Loan Documents).
(ix) The Affiliated Investor that owns such Investment Property shall not have any Borrowing Base Property Owner Indebtedness (other than Obligations) and shall at any time not be subject to any proceedings under any Debtor Relief Law.
(x) Such Investment Property shall not be subject to any ground leases (other than Eligible Ground Leases).
(xi) There shall not exist any Lien or encumbered by other encumbrance on (Ax) such Investment Property (or any Indebtedness income therefrom or proceeds thereof), other than Permitted Borrowing Base DebtProperty Liens, (y) any other assets or property of the Affiliated Investor that owns such Investment Property, other than Liens permitted under Section 7.01 or (Bz) any Lien of the Equity Interests of the Affiliated Investor that owns such Investment Property (or any direct or indirect Subsidiary of ESR OP that owns any Equity Interests of such Affiliated Investor), including any right to receive distributions or other amounts in respect of such Equity Interests, other than a Permitted Borrowing Base Lien, (iii) no more than three (3) Properties located outside of the United State of America may qualify as Borrowing Base Properties at any time, and (iv) no more than two (2) Borrowing Base Properties may include a condominium or timeshare component or otherwise be part of a condominium or similar development that includes a residential/hotel condominium, fractional interest or timeshare component, in any such case unless otherwise agreed by the Required Lenders, and (v) at least three (3) Borrowing Base Properties shall at all times qualify as “luxury” or “upper-upscale” hotels, as designated by ▇▇▇▇▇ Travel Research (or a similar successor company designated by Administrative AgentLiens permitted under Section 7.01(a).
(bxii) A After giving pro forma effect to the inclusion of such Investment Property may cease to qualify as a Borrowing Base Property, the minimum aggregate occupancy for all Borrowing Base Properties (excluding for this purpose the Empire State Building) shall not be less than 75% (determined based on tenants in occupancy and paying rent); provided, that such Investment Property may be included as a Borrowing Base Property notwithstanding its failure to satisfy the provisions of this clause (ix), but subject to the other provisions of this Section 2.19, so long as the failure to satisfy the minimum occupancy requirement set forth in this clause (ix) is cured and ceases to exist within forty-five (45) days following the occurrence thereof.
(xiii) The Administrative Agent and the Lenders shall have received an Availability Certificate from the Borrowers showing Availability after giving effect to the inclusion of such Investment Property as a Borrowing Base Property.
(xiv) The Administrative Agent and the Lenders shall have received a copy of the limited liability company operating agreement, partnership agreement, bylaws or other similar organizational documents of the Affiliated Investor who owns such Investment Property (or, if applicable, that is the lessee under an Eligible Ground Lease in respect of such Investment Property) and each Subsidiary of ESR OP that directly or indirectly owns any Equity Interests in such Affiliated Investor, which organizational documents shall be (x) in form and substance reasonably satisfactory to the Administrative Agent and (y) certified by a Responsible Officer of the Parent as being true, correct and complete.
(xv) The Administrative Agent shall have received environmental assessment reports, evidence of insurance and such other information concerning such Investment Property as the Administrative Agent may subsequently regain its status reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent, and (in the case of environmental assessment reports) that demonstrate to the satisfaction of the Administrative Agent that such Investment Property is free from environmental issues that, or that could reasonably be expected to, materially impair the operation of such Investment Property or otherwise result in a Material Adverse Effect, in each case unless such environmental issues are remediable through ordinary course capital expenditures and the Loan Parties are diligently pursuing the remediation thereof in accordance with applicable Law.
(b) Removal of Investment Property as a Borrowing Base Property as provided a Result of Failure to Satisfy Borrowing Base Eligibility Criteria. If, following the inclusion of any Investment Property as a Borrowing Base Property, such Investment Property fails to satisfy any of the Borrowing Base Eligibility Criteria set forth in clause Section 2.19(a)(iii) through (cxi) belowfor a period of thirty (30) days, then such Investment Property shall immediately cease to be a Borrowing Base Property on such thirtieth day. In addition in the event that (i) the minimum aggregate occupancy for all Borrowing Base Properties (excluding for this purpose the Empire State Building) becomes less than 75% (determined based on tenants in occupancy and paying rent) for more than 45 days, Investment Properties that are partially or fully vacant but still producing rental income and that otherwise satisfy the other Borrowing Base Eligibility Criteria will cease to be Borrowing Base Properties to the extent necessary to cause such minimum occupancy requirement to be satisfied (which removal of Investment Properties from the pool of Borrowing Base Properties for purposes of satisfying this minimum occupancy requirement shall be in the order indicated by the Borrowers) and (ii) the Empire State Building at any time ceases to be a Borrowing Base Property for any reason, the Empire State Observatory shall also automatically cease to be a Borrowing Base Property at such time. If any Investment Property ceases to be a Borrowing Base Property as a result of any of the circumstances set forth in the prior two (2) sentences, the Borrowers shall immediately provide the Administrative Agent with written notice thereof, together with an Availability Certificate (giving pro forma effect to the removal of the applicable Investment Propert(ies) from the pool of Borrowing Base Properties). If, after giving effect to any such removal of the applicable Investment Propert(ies) from the pool of Borrowing Base Properties, Availability is less than $0, the Borrowers shall immediately prepay Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount necessary to cause Availability to be greater than or equal to $0 in the manner specified in Section 2.07(b)(ii). If any Investment Property that is subject to an Assigned Mortgage ceases to be a Borrowing Base Property pursuant to this Section 2.19(b), then such Assigned Mortgage shall be terminated in accordance with Section 2.22(b); provided, that if the Borrowers request that in lieu of such termination such Assigned Mortgage instead be transferred to another Borrowing Base Property located in the State of New York that is identified by the Borrowers, the Administrative Agent may in its sole and absolute discretion permit such Assigned Mortgage to be transferred in its entirety to such other Borrowing Base Property (and if the Administrative Agent does agree to allow such transfer, (x) such transfer shall be made at the Borrowers’ sole cost and expense pursuant to documentation satisfactory to the Administrative Agent and (y) on or prior to the time of such transfer, the Affiliated Investor that owns the Borrowing Base Property that will become subject to such Assigned Mortgage shall have become a Borrower in accordance with Section 6.12(c)).
(c) The Properties approved as Removal of Investment Property from the pool of Borrowing Base Properties as by the Borrowers. An Investment Property may be removed from the pool of the Closing Date are set forth on Schedule II hereto. Borrower may propose to include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Borrowing Base Properties but ceased by the Borrowers upon the completion of the following conditions precedent to qualify as suchthe reasonable satisfaction of the Administrative Agent:
(i) by sending written proposals for inclusion The Borrowers shall have delivered to the Administrative Agent together with and the Lenders on or prior to the date that is ten (i10) a certification Business Days (or such shorter period of time as agreed to by the Borrower that Administrative Agent in writing) prior to the date on which such removal is to be effected, a written notice of its desire to remove such Investment Property then satisfies from the criteria for pool of Borrowing Base Properties;
(ii) If the proposed removal is with respect to the Empire State Building, the Empire State Observatory must also be removed from the pool of Borrowing Base Properties at the same time as the Empire State Building is removed (and the requirements set forth in clauses (iii) and (iv) of this Section 2.19(c) must also be satisfied with respect to the Empire State Observatory at the same time as such requirements are satisfied with respect to the Empire State Building).
(iii) If the proposed removal is with respect to a Borrowing Base Property orthat is subject to an Assigned Mortgage (other than any such proposed removal in connection with a Replacement Mortgage Financing, in which case the requirements of Section 2.22(d) shall be required to be satisfied), then such Assigned Mortgage shall be terminated in accordance with Section 2.22(b); provided, that if a waiver or discretionary approval is required with respect to any element thereof, so specifying, (ii) reasonable supporting documentation with respect to each of the elements Borrowers request that in lieu of such certification or request, (iii) an Acceptable Appraisal of the proposed termination such Assigned Mortgage instead be transferred to another Borrowing Base Property located in the State of New York that is identified by the Borrowers, the Administrative Agent may in its sole and (iv) a Title Search with respect absolute discretion permit such Assigned Mortgage to be transferred in its entirety to such proposed Borrowing Base Property. The Administrative Agent will make such request and materials available to the Lenders and will endeavor promptly either to (A) accept in writing the Borrower’s certification that such Property satisfies the criteria and is deemed a other Borrowing Base Property (and if the Administrative Agent does agree to allow such transfer, (x) such transfer shall be made at the Borrowers’ sole cost and expense pursuant to documentation satisfactory to the Administrative Agent and (y) on or specify prior to the reason it is unable time of such transfer, the Affiliated Investor that owns the Borrowing Base Property that will become subject to so accept) or (B) solicit the consent or waiver of the Required Lenders such Assigned Mortgage shall have become a Borrower in accordance with respect to any matter so requested by the BorrowerSection 6.12(c)).
(div) Borrower On or before the date that is five (5) Business Days (or such shorter period of time as agreed to by the Administrative Agent in writing) prior to the date of the proposed removal, the Borrowers shall promptly after any have submitted to the Administrative Agent and the Lenders a certificate executed by a Responsible Officer of the Borrower obtains knowledge thereof notify Parent certifying to the Administrative Agent of: and the Lenders that (i1) any material structural defects immediately before and immediately after giving effect to such release, no Default or Environmental Occurrence affecting Event of Default has occurred and is continuing or would result therefrom, (2) immediately after giving effect to such release, the Loan Parties are in compliance with the financial covenants set forth in Section 7.11 on a Borrowing Base Property pro forma basis as if the removal and the repayment contemplated Section 2.19(c)(v) below had occurred on the last day of the then mostly recently ended fiscal quarter of the Parent for which financial statements have provided to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (iib) (and such certificate shall contain a reasonably detailed calculation thereof) and (3) the occurrence representations and warranties of any casualty event affecting a Borrowing Base Property, the Borrowers and each other Loan Party contained in Article V or (iii) any other event or occurrence which would cause a Borrowing Base Property to cease to qualify as such. In such event, the affected Borrowing Base Property will immediately, Loan Document are true and correct in all material respects on and as of the occurrence, cease date of such release and immediately after giving effect to qualify as a Borrowing Base Property hereundersuch release, except (A) to the extent provided that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (B) to the following sentence. In extent that any such representations and warranties relate to the event Investment Property being released, (C) any representation or warranty that structural defectsis already by its terms qualified as to “materiality”, Environmental Occurrence “Material Adverse Effect” or casualty result similar language shall be true and correct in all respects as of such date after giving effect to such qualification and (D) for purposes of this Section 2.19(c), the temporary closure representations and warranties contained in subsections (for repair, restoration or remediationa) and (b) of less than 25% Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(v) On or before the date that is two (2) Business Days (or such shorter period of time as agreed to by the Administrative Agent in writing) prior to the date of the rooms in such hotel and provided that proposed release, the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and ▇▇▇▇▇▇▇-like manner within one hundred twenty (120) days, then such Property will not cease to qualify as a Borrowing Base Property for so long as such conditions remain satisfied and provided that such issues are finally repaired or resolved within one hundred twenty (120) day period.Borrowers shall have
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