Unencumbered Properties. (a) The Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions: (i) the Eligible Real Estate and equipment used therein shall be owned 100% in fee simple by Borrower or an Unencumbered Property Subsidiary (or, with respect to the assets commonly known as ACC7 and ACC8, by Alshain Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are Wholly Owned Subsidiaries of Borrower, (B) any Subsidiaries of Borrower owning a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is an Unencumbered Property Subsidiary, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness of the type described in §8.1(a), (b), (c), (e) and (h)). Such Eligible Real Estate and equipment used therein shall be free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II) and (iv), and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents), but for clarity, excluding (A) any restrictions in the nature of unencumbered asset financial covenants that are calculated with reference to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real Estate; (ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or finance such property and (B) such Eligible Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6; (iii) If such Real Estate is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related personal property, and, without limiting the ability of such Unencumbered Property Subsidiary (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness; (iv) such Eligible Real Estate is managed by Borrower; (v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22; (vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property Subsidiary, Alshain Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries), and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, shall be subject to any Lien; (vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d); (viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value; (ix) the Borrower, Subsidiary Guarantor or Unencumbered Property Subsidiary owning such Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with the requirements of §7.2; and (x) not more than fifteen percent (15.0%) of the Unencumbered Asset Value shall be attributable to Eligible Real Estate located in Canada; provided that a failure to satisfy the requirements of this clause (x) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Value, but any Unencumbered Asset Value attributable thereto in excess of such limitation shall be excluded for the purposes of calculating Unencumbered Asset Value. (b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), 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 reasonably satisfactory to the Agent that the value of such real estate, both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leases) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in the event of a material adverse affect on the value (in Agent’s good faith determination) where some but not all of the leases relating to such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the Unencumbered Asset Value subject to Agent having reasonably approved an adjusted valuation of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for such Eligible Real Estate (taking into account the reduced leasing of such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estate. (c) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset Value. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c), the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §9.1. (d) In addition, the Borrower may voluntarily remove any Unencumbered Properties from the calculation of Unencumbered Asset Value by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve), notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.22 and §9.1. (e) In the event that any Subsidiary of the Borrower that is not a Guarantor or Unencumbered Property Subsidiary owns Real Estate which would otherwise qualify as an Unencumbered Property included in the calculation of Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that: (i) all of the terms and conditions of §5.2 are satisfied; (ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor; (iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and (iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunder.
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Unencumbered Properties. (a) The Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate and equipment used therein shall be owned one hundred percent (100% %) in fee simple or leased under a ground lease acceptable to Agent in its reasonable discretion by Borrower or an Unencumbered Property a Wholly-Owned Subsidiary (or, with respect to the assets commonly known as ACC7 and ACC8, by Alshain Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are Wholly Owned Subsidiaries of Borrower, (B) any Subsidiaries of Borrower owning a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is (it being understood that the ground lease for the WPI07 Tulsa Property shall be an Unencumbered Property Subsidiary, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness of the type described in §8.1(aacceptable ground lease), (b), (c), (e) and (h)). Such Eligible Real Estate and equipment used therein shall be in each case free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II8.2(i) and (iv), and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents), but for clarity, documents and excluding (A) any restrictions right of first offer/refusal or purchase option as set forth in the nature of unencumbered asset financial covenants that are calculated with reference leases provided to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real EstateAgent);
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or finance refinance such property and (B) such Eligible Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6property;
(iii) If such Real Estate is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related fixtures and personal property, and, without limiting the ability of such Unencumbered Property Subsidiary (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness;
(iv) such each Eligible Real Estate is managed by Borrowerand shall be at least eighty percent (80%) leased (based on Net Rentable Area) to one or more tenants which are an Eligible Tenant;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property Subsidiary, Alshain Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries), and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, shall be subject to any Lien;
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ix) the Borrower, Subsidiary Guarantor or Unencumbered Property Subsidiary owning such Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with the requirements of §7.2; and
(x) not more than fifteen ten percent (15.010%) of the total Unencumbered Asset Value shall be attributable to Eligible Real Estate located in Canadawhich is vacant (for example, such tenant is no longer conducting business from such property); provided that a failure to satisfy the requirements of this clause (xv) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Valueas a Subject Property, but any such Unencumbered Asset Value attributable thereto in excess of such limitation shall be being excluded for the purposes of calculating Unencumbered Asset Value and the Unencumbered Net Operating Income corresponding thereto shall be similarly excluded);
(vi) the Borrower shall have delivered to the Agent (A) a written request to include such Eligible Real Estate in the calculation of the Unencumbered Asset Value, (B) a physical description of such Eligible Real Estate, (C) a current Rent Roll and current operating statements for such Eligible Real Estate, (D) a certification as to the matters covered under §7.16(a)(i)-(v), and (E) such other information as the Agent may reasonably require with respect to such Eligible Real Estate, including any information reasonably required by the Agent to determine compliance with this §7.16 (collectively, the “Eligible Real Estate Qualification Documents”);
(vii) such Eligible Real Estate has not been removed from the calculation of the Unencumbered Asset Value pursuant to §7.16(b), §7.16(c) or §7.16(d); and
(viii) such Eligible Real Estate has become (or simultaneously with an advance of the Loan under this Agreement will become) a “Subject Property” under the Senior Unsecured Credit Facility and has not been released as a “Subject Property” under the Senior Unsecured Credit Facility.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged in any material respect or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, shall no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), 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 reasonably satisfactory to the Agent that the value of such real estate, estate (both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leasesprospectively) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in . In the event of a material adverse affect on the value (in Agent’s good faith determination) where some but not all of the leases relating to that such damage or condemnation only partially affects such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the calculation of the Unencumbered Asset Value, then the Required Lenders may in good faith reduce the Unencumbered Asset Value subject attributable thereto based on such damage until such time as the Required Lenders receive evidence satisfactory to Agent having reasonably approved an adjusted valuation the Required Lenders that the value of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for real estate (both at such Eligible Real Estate (taking into account the reduced leasing of time and prospectively) shall no longer be materially adversely affected by such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estatedamage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset ValueValue 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 Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c)above, the Borrower shall deliver to the Agent a pro forma Compliance an updated Unencumbered Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in this §9.17.16 and §§9.2 and 9.4.
(d) In addition, the Borrower may voluntarily remove any Unencumbered Properties Real Estate from the calculation of the Unencumbered Asset Value by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve)effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Subject Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Unencumbered Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in this §7.22 7.16 and §9.1§9.2 and 9.4.
(e) In The Agent shall promptly notify the event that any Subsidiary Lenders of the Borrower that is not a Guarantor addition or Unencumbered Property Subsidiary owns removal of any Real Estate which would otherwise qualify as an Unencumbered Property included in from the calculation of Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all of the terms and conditions of §5.2 are satisfied;
(ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunder.
Appears in 1 contract
Unencumbered Properties. (a) The Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate and equipment used therein shall be owned one hundred percent (100% %) in fee simple by Borrower or an Unencumbered Property Subsidiary (or, with respect leased under a ground lease acceptable to the assets commonly known as ACC7 and ACC8, Required Holders in its reasonable discretion by Alshain Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are Wholly a Wholly-Owned Subsidiaries of Borrower, (B) any Subsidiaries of Borrower owning a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is an Unencumbered Property Subsidiary, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness Subsidiary of the type described in §8.1(aCompany (it being understood that the ground lease for the WPI07 Tulsa Property shall be an acceptable ground lease), (b), (c), (e) and (h)). Such Eligible Real Estate and equipment used therein shall be in each case free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II) and (iv)Permitted Liens, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents), but for clarity, documents and excluding (A) any restrictions right of first offer/refusal or purchase option as set forth in the nature leases provided to the holders of unencumbered asset financial covenants that are calculated with reference to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real EstateNotes);
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or finance refinance such property and (B) such Eligible Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6;property; Gladstone Commercial Limited Partnership Note Purchase Agreement
(iii) If such Real Estate is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related fixtures and personal property, and, without limiting the ability of such Unencumbered Property Subsidiary (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness;
(iv) such each Eligible Real Estate is managed by Borrowerand shall be at least eighty percent (80%) leased (based on Net Rentable Area) to one or more tenants which are an Eligible Tenant;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property Subsidiary, Alshain Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries), and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, shall be subject to any Lien;
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ix) the Borrower, Subsidiary Guarantor or Unencumbered Property Subsidiary owning such Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with the requirements of §7.2; and
(x) not more than fifteen ten percent (15.010%) of the total Unencumbered Asset Value shall be attributable to Eligible Real Estate located in Canadawhich is vacant (for example, such tenant is no longer conducting business from such property); provided that a failure to satisfy the requirements of this clause (xv) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Valueas a Subject Property, but any such Unencumbered Asset Value attributable thereto in excess of such limitation shall be being excluded for the purposes of calculating Unencumbered Asset Value and the Unencumbered Net Operating Income corresponding thereto shall be similarly excluded;
(vi) the Company shall have delivered to the holders of Notes (A) a written request to include such Eligible Real Estate in the calculation of the Unencumbered Asset Value, (B) a physical description of such Eligible Real Estate, (C) a current Rent Roll and current operating statements for such Eligible Real Estate, (D) a certification as to the matters covered under Section 9.9(a)(i)-(v), and (E) such other information as the holders of Notes may reasonably require with respect to such Eligible Real Estate, including any information reasonably required by the holders of Notes to determine compliance with this Section 9.9 (collectively, the “Eligible Real Estate Qualification Documents”); and
(vii) such Eligible Real Estate has not been removed from the calculation of the Unencumbered Asset Value pursuant to Section 9.9(b), Section 9.9(c) or Section 9.9(d).
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged in any material respect or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, shall no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), and the Agent holders of Notes shall receive have received evidence reasonably satisfactory to the Agent Required Holders of the value of such real estate following such repair or restoration (both at such time and prospectively), ) or (ii) Agent Required Holders shall receive have received evidence reasonably satisfactory to the Agent Required Holders that the value of such real estate, estate (both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leasesprospectively) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in . In the event of a material adverse affect on the value (in Agent’s good faith determination) where some but not all of the leases relating to that such damage or condemnation only partially affects such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the calculation of the Unencumbered Asset Value, then the Required Holders may in good faith reduce the Unencumbered Asset Value subject attributable thereto based on such damage until such time as the Required Holders receive evidence reasonably satisfactory to Agent having reasonably approved an adjusted valuation the Required Holders that the value of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for real estate (both at such Eligible Real Estate (taking into account the reduced leasing of time and prospectively) shall no longer be materially adversely affected by such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estate.damage or condemnation. Gladstone Commercial Limited Partnership Note Purchase Agreement
(c) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset ValueValue unless otherwise approved in writing by the Required Holders (which approval shall not be unreasonably withheld, conditioned, or delayed). Within five (5) Business Days after becoming aware of any such disqualification, the Borrower Company shall deliver to the Agent holders of Notes 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 Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c)above, the Borrower Company shall deliver to the Agent a pro forma Compliance holders of Notes an updated Unencumbered Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §9.1this Section 9.9 and Section 10.10(a) and Section 10.10(b).
(d) In addition, the Borrower Company may voluntarily remove any Unencumbered Properties Real Estate from the calculation of the Unencumbered Asset Value by delivering to the Agentholders of Notes, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve)effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Subject Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower Company shall deliver to the Agent holders of Notes a pro forma Compliance Certificate and Unencumbered Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.22 this Section 9.9 and §9.1Section 10.10(a) and Section 10.10(b).
(e) In The Company shall promptly notify the event that any Subsidiary holders of Notes of the Borrower that is not a Guarantor addition or Unencumbered Property Subsidiary owns removal of any Real Estate which would otherwise qualify as an Unencumbered Property included in from the calculation of Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all of the terms and conditions of §5.2 are satisfied;
(ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunder.
Appears in 1 contract
Sources: Note Purchase Agreement (Gladstone Commercial Corp)
Unencumbered Properties. (a) The Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) : the Eligible Real Estate and equipment used therein shall be owned 100% in fee simple by Borrower or an Unencumbered Property Subsidiary (or, with respect to the assets commonly known as ACC7 and ACC8, by Alshain Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are Wholly Owned Subsidiaries of Borrower, (B) any Subsidiaries of Borrower owning a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is an Unencumbered Property Subsidiary, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness of the type described in §8.1(a), (b), (c), (e) and (h)). Such Eligible Real Estate and equipment used therein shall be free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II) and (iv), and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents), but for clarity, excluding (A) any restrictions in the nature of unencumbered asset financial covenants that are calculated with reference to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real Estate;
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or finance such property and (B) such Eligible Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6;
(iii) If such Real Estate is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related personal property, and, without limiting the ability of such Unencumbered Property Subsidiary (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness;
(iv) such Eligible Real Estate is managed by Borrower;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property Subsidiary, Alshain Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries), and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, shall be subject to any Lien;
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ix) the Borrower, Subsidiary Guarantor or Unencumbered Property Subsidiary owning such Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with the requirements of §7.2; and
(x) not more than fifteen percent (15.0%) of the Unencumbered Asset Value shall be attributable to Eligible Real Estate located in Canada; provided that a failure to satisfy the requirements of this clause (x) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Value, but any Unencumbered Asset Value attributable thereto in excess of such limitation shall be excluded for the purposes of calculating Unencumbered Asset Value.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), 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 reasonably satisfactory to the Agent that the value of such real estate, both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leases) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in the event of a material adverse affect on the value (in Agent’s good faith determination) where some but not all of the leases relating to such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the Unencumbered Asset Value subject to Agent having reasonably approved an adjusted valuation of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for such Eligible Real Estate (taking into account the reduced leasing of such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estate.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset Value. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c), the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §9.1.
(d) In addition, the Borrower may voluntarily remove any Unencumbered Properties from the calculation of Unencumbered Asset Value by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve), notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.22 and §9.1.
(e) In the event that any Subsidiary of the Borrower that is not a Guarantor or Unencumbered Property Subsidiary owns Real Estate which would otherwise qualify as an Unencumbered Property included in the calculation of Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all of the terms and conditions of §5.2 are satisfied;
(ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunder.
Appears in 1 contract
Unencumbered Properties. (a) The Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate and equipment used therein shall be owned 100% in fee simple by Borrower or an Unencumbered Property a Subsidiary Guarantor (or, with respect to the assets asset commonly known as ACC7 and ACC8, by Alshain Yak Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are is a Wholly Owned Subsidiaries Subsidiary of Borrower, (B) any Subsidiaries of Borrower owning a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is an Unencumbered Property Subsidiarya Subsidiary Guarantor, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness of the type described in §8.1(a), (b), (c), (e) and (he)). Such Eligible Real Estate and equipment used therein shall be free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II) and (iv), and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents), but for clarity, excluding (A) any restrictions in the nature of unencumbered asset financial covenants that are calculated with reference to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real Estate;
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or finance such property and (B) such Eligible Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6;
(iii) If such Real Estate is owned by an Unencumbered Property Subsidiarya Subsidiary Guarantor, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related personal property, and, without limiting the ability of such Unencumbered Property Subsidiary Guarantor (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt Indebtedness otherwise permitted hereunder, such Unencumbered Property Subsidiary Guarantor shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness;
(iv) such Eligible Real Estate is managed by Borrower;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiarya Subsidiary Guarantor, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property Subsidiary, Alshain Ventures LLC Subsidiary Guarantor or Yak Ventures LLC, respectively, LLC any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries)Guarantors, and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, shall be subject to any Lien;
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);; and
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ix) the Borrower, Subsidiary Guarantor or Unencumbered Property Subsidiary owning such Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with the requirements of §7.2; and
(x) not more than fifteen percent (15.0%) of the Unencumbered Asset Value shall be attributable to Eligible Real Estate located in Canada; provided that a failure to satisfy the requirements of this clause (x) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Value, but any Unencumbered Asset Value attributable thereto in excess of such limitation shall be excluded for the purposes of calculating Unencumbered Asset Value.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), 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 reasonably satisfactory to the Agent that the value of such real estate, both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without including, limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leases) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in the event of a material adverse affect effect on the value (in Agent’s good faith determination) where some but not all of the leases relating to such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the Unencumbered Asset Value subject to Agent having reasonably approved an adjusted valuation of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for such Eligible Real Estate (taking into account the reduced leasing of such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estate.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset Value. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c), the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §9.1.
(d) In addition, the Borrower may voluntarily remove any Unencumbered Properties from the calculation of Unencumbered Asset Value by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve)effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.22 and §9.1.
(e) In the event that any Subsidiary of the Borrower that is not a Guarantor or Unencumbered Property Subsidiary owns Real Estate which would otherwise qualify as an Unencumbered Property included in the calculation of Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all of the terms and conditions of §5.2 are satisfied;
(ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunder.
(f) Notwithstanding anything herein to the contrary, if the Agent is required to make a determination under this Agreement with respect to any Eligible Real Estate or Unencumbered Property or any matter hereunder requires Agent approval with respect to any Eligible Real Estate or Unencumbered Property, any determination or approval made by the “Agent” (or such other similar term as used therein) under the Existing Credit Agreement with respect to such matters will be deemed to be the determination or approval of the Agent under this Agreement without any further Agent determination or approval hereunder required.
Appears in 1 contract
Sources: Term Loan Agreement (Dupont Fabros Technology, Inc.)
Unencumbered Properties. (a) The Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate and equipment used therein shall be owned 100% in fee simple simple, or leased pursuant to a Ground Lease or Lease that as to Borrower or the applicable Unencumbered Property Subsidiary is not in Lease Default, by Borrower or an Unencumbered Property Subsidiary (orand shall, with respect in each case, be benefitted by easements, rights of way and other similar appurtenances as are required for the operation of such Eligible Real Estate. Borrower or the applicable Unencumbered Property Subsidiary shall own all right, title and interest to the assets commonly known as ACC7 rents, accounts and ACC8, by Alshain Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are Wholly Owned Subsidiaries of Borrower, (B) any Subsidiaries of Borrower owning a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is an Unencumbered Property Subsidiary, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness of the type described in §8.1(a), (b), (c), (e) and (h))revenues from such Eligible Real Estate. Such Eligible Real Estate and equipment used therein shall (x) be free and clear of all Liens and Negative Pledges (other than the Liens permitted in §8.2(i)(A), (i)(B)(II) and (iv§8.2(iv)), and (y) such Eligible Real Estate and Borrower and the Unencumbered Property Subsidiary shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property Eligible Real Estate (including any restrictions contained in any applicable organizational documents)) other than any restriction on sale, but for claritytransfer, excluding mortgage or assignment arising (A) from any restrictions in the nature of unencumbered asset financial covenants that are calculated with reference to such Eligible Real Estate and Estate, (B) asset sale sale, assignment and transfer limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real Estate, (C) restrictions under any other tax protection agreement approved in writing by Agent in its discretion, or (D) any restrictions arising under any Loan Document (any restrictions on sale, pledge, transfer, mortgage or assignment described in this clause (y), after taking into account the carve-outs in this clause (y), a “Negative Pledge”);
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material titlestructural defects or major architectural deficiencies, surveytitle defects, structural materially adverse environmental conditions or other defects that would give rise to a materially adverse effect as matters in each case except for defects, deficiencies, conditions or other matters individually or collectively which are not materially adverse to the value, use profitable operation of or ability to sell or finance such property and (B) such Eligible Real Estate, and such Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.68.6 that are applicable to Unencumbered Properties;
(iii) If such Real Estate is owned or leased by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related personal property, andthen, without limiting the ability of such Unencumbered Property Subsidiary (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt Indebtedness otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be a borrower primary obligor or guarantor liable with respect to any Secured Recourse Indebtedness or Non-Recourse Indebtedness (provided that such Unencumbered Property Subsidiary may be liable with respect to (w) Capitalized Lease Obligations existing as of the date hereof described on Schedule 7.22, (x) Capitalized Lease Obligations which exist at the time any Person which becomes an Unencumbered Property Subsidiary is acquired by Borrower and which Capitalized Lease Obligations were not entered into in anticipation of such acquisition by Borrower, (y) other IndebtednessCapitalized Lease Obligations not exceeding $10,000,000.00 in the aggregate at any time outstanding and (z) purchase money Indebtedness with respect to equipment used at an Unencumbered Property of up to $10,000,000 in the aggregate at any time outstanding);
(iv) such Eligible Real Estate is managed by BorrowerBorrower or another manager approved by Agent, such approval to not be unreasonably withheld;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned or leased by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests (including all economic, beneficial and voting interests) in such Unencumbered Property Subsidiary, Alshain Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries)Agreement, and no direct or indirect ownership or other interests or rights in any such Unencumbered Property Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, intermediate Subsidiary shall be subject to any LienLien or Negative Pledge other than Liens permitted under §8.2(i)(A);
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate delivered in accordance with §7.4(c) or delivered pursuant to this §7.227.22 and the Eligible Real Estate Qualification Documents have been delivered to Agent, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);; and
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ix) the Borrower, Subsidiary Guarantor or Unencumbered Property Subsidiary owning such Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with the requirements of §7.2; and
(x) not more than fifteen percent (15.0%) of the Unencumbered Asset Value shall be attributable to Eligible Real Estate located in Canada; provided that a failure to satisfy the requirements of this clause (x) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Value, but any Unencumbered Asset Value attributable thereto in excess of such limitation shall be excluded for the purposes of calculating Unencumbered Asset Value.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property Real Estate may, at the reasonable determination of Agent, no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate Real Estate is repaired or restored, such real estate Real Estate becomes fully operational (if such property Real Estate was a Stabilized Property), and the Agent shall receive evidence satisfactory to the Agent of the value of such real estate Real Estate following such repair or restoration (both at such time and prospectively), or (ii) Agent shall receive evidence reasonably satisfactory to the Agent that the value of such real estateReal Estate, both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without including, limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leases) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in the event of a material adverse affect effect on the value (in Agent’s good faith determination) where some but not all of the leases relating to such Eligible Real Estate may remain in effect after such casualty or condemnation, such property Real Estate shall continue to be included in the Unencumbered Asset Value subject to Agent having reasonably approved an adjusted valuation of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for such Eligible Real Estate (taking into account the reduced leasing of such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estate.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset Value. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c), the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §9.1.
(d) In addition, the Borrower may voluntarily remove any Unencumbered Properties from the calculation of Unencumbered Asset Value by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve)effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.22 and §9.1.
(e) In Notwithstanding the foregoing, in the event that any Subsidiary of the Borrower that is not a Guarantor or Unencumbered Property Subsidiary owns Real Estate which would otherwise does not qualify as an Unencumbered Property Eligible Real Estate or satisfy the requirements of §7.22(a), such Real Estate shall be included in the calculation of the Unencumbered Asset Value so long as (x) the Agent shall have received the prior written consent of each of the Majority Lenders to the inclusion of such Real Estate in the calculation of the Unencumbered Asset Value and the Borrower desires for the same (y) at no time after it is included does such Real Estate fail to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all satisfy any requirements of the terms Majority Lenders imposed as a condition to such approval, and conditions any requirements of the definition of Eligible Real Estate or of §5.2 are satisfied;
(ii7.22(a) All representations in addition to those it failed to satisfy at the Loan Documents herein time such consent of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to Majority Lenders was provided for such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunderinclusion.
Appears in 1 contract
Sources: Credit Agreement (CyrusOne Inc.)
Unencumbered Properties. (a) The Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate and equipment used therein shall be owned one hundred percent (100% %) in fee simple or leased under a ground lease acceptable to Agent in its reasonable discretion by Borrower or an Unencumbered Property a Subsidiary (orGuarantor, with respect to the assets commonly known as ACC7 and ACC8, by Alshain Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are Wholly Owned Subsidiaries of Borrower, (B) any Subsidiaries of Borrower owning a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is an Unencumbered Property Subsidiary, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness of the type described in §8.1(a), (b), (c), (e) and (h)). Such Eligible Real Estate and equipment used therein shall be each case free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II8.2(i) and (iv), and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents), but for clarity, documents and excluding (A) any restrictions right of first offer/refusal or purchase option as set forth in the nature of unencumbered asset financial covenants that are calculated with reference leases provided to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real EstateAgent);
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or finance refinance such property and (B) such Eligible Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6property;
(iii) If such Real Estate is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related fixtures and personal property, and, without limiting the ability of such Unencumbered Property Subsidiary (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness;
(iv) such each Eligible Real Estate is managed by Borrowerand shall be at least eighty percent (80%) leased (based on Net Rentable Area) to one or more tenants which are an Eligible Tenant;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property Subsidiary, Alshain Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries), and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, shall be subject to any Lien;
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ix) the Borrower, Subsidiary Guarantor or Unencumbered Property Subsidiary owning such Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with the requirements of §7.2; and
(x) not more than fifteen ten percent (15.010%) of the total Unencumbered Asset Value shall be attributable to Eligible Real Estate located in Canadawhich is vacant (for example, such tenant is no longer conducting business from such property); provided that a failure to satisfy the requirements of this clause (xv) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Valueas a Subject Property, but any such Unencumbered Asset Value attributable thereto in excess of such limitation shall be being excluded for the purposes of calculating Unencumbered Asset ValueValue and the Unencumbered Net Operating Income corresponding thereto shall be similarly excluded);
(vi) the Borrower shall have delivered to the Agent (A) a written request to include such Eligible Real Estate in the calculation of the Unencumbered Asset Availability, (B) a physical description of such Eligible Real Estate, (C) a current Rent Roll and current operating statements for such Eligible Real Estate, (D) a certification as to the matters covered under §7.16(a)(i)-(v), and (E) such other information as the Agent may reasonably require with respect to such Eligible Real Estate, including any information reasonably required by the Agent to determine compliance with this §7.16 (collectively, the “Eligible Real Estate Qualification Documents”); and
(vii) such Eligible Real Estate has not been removed from the calculation of the Unencumbered Asset Availability pursuant to §7.16(b), §7.16(c) or §7.16(d).
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged in any material respect or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, shall no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), 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 reasonably satisfactory to the Agent that the value of such real estate, estate (both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leasesprospectively) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in . In the event of a material adverse affect on the value (in Agent’s good faith determination) where some but not all of the leases relating to that such damage or condemnation only partially affects such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the calculation of the Unencumbered Asset Value, then the Required Lenders may in good faith reduce the Unencumbered Asset Value subject attributable thereto based on such damage until such time as the Required Lenders receive evidence satisfactory to Agent having reasonably approved an adjusted valuation the Required Lenders that the value of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for real estate (both at such Eligible Real Estate (taking into account the reduced leasing of time and prospectively) shall no longer be materially adversely affected by such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estatedamage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset ValueValue 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 Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c)above, the Borrower shall deliver to the Agent a pro forma Compliance an updated Unencumbered Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in this §7.16 and §§9.1, 9.2, 9.3 and 9.4.
(d) In addition, the Borrower may voluntarily remove any Unencumbered Properties Real Estate from the calculation of the Unencumbered Asset Value Availability upon any of the events described in §5.3(d) occurring, by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve)effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Subject Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Unencumbered Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in this §7.22 7.16 and §§9.1, 9.2, 9.3 and 9.
(e) In The Agent shall promptly notify the event that any Subsidiary Lenders of the Borrower that is not a Guarantor addition or Unencumbered Property Subsidiary owns removal of any Real Estate which would otherwise qualify as an Unencumbered Property included in from the calculation of the Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all of the terms and conditions of §5.2 are satisfied;
(ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunderAvailability.
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Unencumbered Properties. (a) The Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate and equipment used therein shall be owned one hundred percent (100% %) in fee simple or leased under a ground lease acceptable to Agent in its reasonable discretion by Borrower or an Unencumbered Property a Wholly-Owned Subsidiary (or, with respect to the assets commonly known as ACC7 and ACC8, by Alshain Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are Wholly Owned Subsidiaries of Borrower, (B) any Subsidiaries of Borrower owning a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is an Unencumbered Property Subsidiary, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness of the type described in §8.1(a), (b), (c), (e) and (h)). Such Eligible Real Estate and equipment used therein shall be each case free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II8.2(i) and (iv), and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents), but for clarity, documents and excluding (A) any restrictions right of first offer/refusal or purchase option as set forth in the nature of unencumbered asset financial covenants that are calculated with reference leases provided to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real EstateAgent);
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or finance refinance such property and (B) such Eligible Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6property;
(iii) If such Real Estate is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related fixtures and personal property, and, without limiting the ability of such Unencumbered Property Subsidiary (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness;
(iv) such each Eligible Real Estate is managed by Borrowerand shall be at least eighty percent (80%) leased (based on Net Rentable Area) to one or more tenants which are an Eligible Tenant;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property Subsidiary, Alshain Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries), and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, shall be subject to any Lien;
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ix) the Borrower, Subsidiary Guarantor or Unencumbered Property Subsidiary owning such Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with the requirements of §7.2; and
(x) not more than fifteen ten percent (15.010%) of the total Unencumbered Asset Value shall be attributable to Eligible Real Estate located in Canadawhich is vacant (for example, such tenant is no longer conducting business from such property); provided that a failure to satisfy the requirements of this clause (xv) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Valueas a Subject Property, but any such Unencumbered Asset Value attributable thereto in excess of such limitation shall be being excluded for the purposes of calculating Unencumbered Asset Value and the Unencumbered Net Operating Income corresponding thereto shall be similarly excluded);
(vi) the Borrower shall have delivered to the Agent (A) a written request to include such Eligible Real Estate in the calculation of the Unencumbered Asset Value, (B) a physical description of such Eligible Real Estate, (C) a current Rent Roll and current operating statements for such Eligible Real Estate, (D) a certification as to the matters covered under §7.16(a)(i)-(v), and (E) such other information as the Agent may reasonably require with respect to such Eligible Real Estate, including any information reasonably required by the Agent to determine compliance with this §7.16 (collectively, the “Eligible Real Estate Qualification Documents”); and
(vii) such Eligible Real Estate has not been removed from the calculation of the Unencumbered Asset Value pursuant to §7.16(b), §7.16(c) or §7.16(d).
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged in any material respect or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, shall no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), 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 reasonably satisfactory to the Agent that the value of such real estate, estate (both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leasesprospectively) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in . In the event of a material adverse affect on the value (in Agent’s good faith determination) where some but not all of the leases relating to that such damage or condemnation only partially affects such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the calculation of the Unencumbered Asset Value, then the Required Lenders may in good faith reduce the Unencumbered Asset Value subject attributable thereto based on such damage until such time as the Required Lenders receive evidence satisfactory to Agent having reasonably approved an adjusted valuation the Required Lenders that the value of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for real estate (both at such Eligible Real Estate (taking into account the reduced leasing of time and prospectively) shall no longer be materially adversely affected by such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estatedamage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset ValueValue 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 Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c)above, the Borrower shall deliver to the Agent a pro forma Compliance an updated Unencumbered Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in this §9.17.16 and §§9.2, 9.3 and 9.4.
(d) In addition, the Borrower may voluntarily remove any Unencumbered Properties Real Estate from the calculation of the Unencumbered Asset Value by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve)effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Subject Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Unencumbered Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in this §7.22 7.16 and §9.1§9.2, 9.3 and 9.4.
(e) In The Agent shall promptly notify the event that any Subsidiary Lenders of the Borrower that is not a Guarantor addition or Unencumbered Property Subsidiary owns removal of any Real Estate which would otherwise qualify as an Unencumbered Property included in from the calculation of Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all of the terms and conditions of §5.2 are satisfied;
(ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunder.
Appears in 1 contract
Unencumbered Properties. (a) The Subject to clause (b) of this §7.16, the Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate and equipment used therein shall be owned one hundred percent (100% %) in fee simple or leased under a Ground Lease by the Borrower or an Unencumbered Property Subsidiary (or, with respect to the assets commonly known as ACC7 and ACC8, by Alshain Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are a Wholly Owned Subsidiaries of Borrower, (B) any Subsidiaries Subsidiary of Borrower owning or a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is Controlled JV Entity (each such Subsidiary and Controlled JV Entity, an “Unencumbered Property Subsidiary, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness of the type described in §8.1(a”), (b), (c), (e) and (h)). Such Eligible Real Estate and equipment used therein shall be free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II8.2(iii) and (iv)Other Permitted Liens, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documentsdocuments but excluding any such limitations permitted pursuant to the last sentence of §7.12(a), but for clarity, excluding (A) any restrictions in the nature of unencumbered asset financial covenants that are calculated with reference to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real Estate);
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or finance such property property, other than the restrictions on sale set forth in Section 7.3 of the Borrower’s Third Amended and (B) such Eligible Real Estate shall be Restated Limited Partnership Agreement as in compliance effect as of October 1, 2013 with the representations in §6.20 respect to Park Estate, Reserve at Dexter Lake and the requirements of §8.6Indigo Pointe;
(iii) If if such Real Estate is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related personal property, and, without limiting the ability assets of such Unencumbered Property Subsidiary (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness;
(iv) such Eligible Real Estate is managed by Borrower;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property Subsidiary, Alshain Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries), and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, shall be subject to any Lien;
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ixiv) if multifamily Real Estate, such Real Estate is managed by Manager; and
(v) if such Unencumbered Property is owned or leased under a Ground Lease by an Unencumbered Property Subsidiary, (A) no Person other than the Borrower, or a direct or indirect Wholly Owned Subsidiary Guarantor of the Borrower has any direct or indirect ownership of any legal, equitable or beneficial interest in such Unencumbered Property Subsidiary owning (except that with respect to a Controlled JV Entity, all Equity Interests not required under this Agreement to be owned by Borrower may be owned by another Person), and (B) no direct or indirect ownership or other interests or rights of (1) Borrower in any such Unencumbered Property Subsidiary or (2) any Controlled JV Entity in a subsidiary of a Controlled JV Entity, shall be subject to any Lien.
(b) Notwithstanding the foregoing, in the event any Real Estate does not qualify as Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with or satisfy the requirements of §7.2; and
(x) not more than fifteen percent (15.0%) of the Unencumbered Asset Value 7.16(a), such Real Estate shall be attributable to Eligible Real Estate located in Canada; provided that a failure to satisfy the requirements of this clause (x) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Value, but any Unencumbered Asset Value attributable thereto in excess so long as the Agent shall have received the prior written consent of each of the Required Lenders to the inclusion of such limitation shall be excluded for the purposes of calculating Unencumbered Asset Value.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), 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 reasonably satisfactory to the Agent that the value of such real estate, both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leases) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in the event of a material adverse affect on the value (in Agent’s good faith determination) where some but not all of the leases relating to such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the Unencumbered Asset Value subject to Agent having reasonably approved an adjusted valuation of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for such Eligible Real Estate (taking into account the reduced leasing of such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real EstateValue.
(c) Upon any asset ceasing to qualify under §7.16(a) or (b) to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset Value. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c), the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §9.1.
(d) In addition, the Borrower may voluntarily remove any Unencumbered Properties Real Estate from the calculation of Unencumbered Asset Value by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve), notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.22 and §9.1its sole discretion.
(e) In the event that any Subsidiary of the Borrower that is not a Guarantor or Unencumbered Property Subsidiary owns Real Estate which would otherwise qualify as an Unencumbered Property included in the calculation of Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all of the terms and conditions of §5.2 are satisfied;
(ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunder.
Appears in 1 contract
Unencumbered Properties. (a) The Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate and equipment used therein shall be owned one hundred percent (100% %) in fee simple by Borrower or an Unencumbered Property Subsidiary (or, with respect leased under a ground lease acceptable to the assets commonly known as ACC7 and ACC8, Required Holders in its reasonable discretion by Alshain Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are Wholly a Wholly-Owned Subsidiaries of Borrower, (B) any Subsidiaries of Borrower owning a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is an Unencumbered Property Subsidiary, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness Subsidiary of the type described in §8.1(aCompany (it being understood that the ground lease for the WPI07 Tulsa Property shall be an acceptable ground lease), (b), (c), (e) and (h)). Such Eligible Real Estate and equipment used therein shall be in each case free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II) and (iv)Permitted Liens, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents), but for clarity, documents and excluding (A) any restrictions right of first offer/refusal or purchase option as set forth in the nature leases provided to the holders of unencumbered asset financial covenants that are calculated with reference to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real EstateNotes);
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or finance refinance such property and (B) such Eligible Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6property;
(iii) If such Real Estate is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related fixtures and personal property, and, without limiting the ability of such Unencumbered Property Subsidiary (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness;
(iv) such each Eligible Real Estate is managed by Borrowerand shall be at least eighty percent (80%) leased (based on Net Rentable Area) to one or more tenants which are an Eligible Tenant;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property Subsidiary, Alshain Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries), and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, shall be subject to any Lien;
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ix) the Borrower, Subsidiary Guarantor or Unencumbered Property Subsidiary owning such Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with the requirements of §7.2; and
(x) not more than fifteen ten percent (15.010%) of the total Unencumbered Asset Value shall be attributable to Eligible Real Estate located in Canadawhich is vacant (for example, such tenant is no longer conducting business from such property); provided that a failure to satisfy the requirements of this clause (xv) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Valueas a Subject Property, but any such Unencumbered Asset Value attributable thereto in excess of such limitation shall be being excluded for the purposes of calculating Unencumbered Asset Value and the Unencumbered Net Operating Income corresponding thereto shall be similarly excluded; Gladstone Commercial Limited Partnership Note Purchase Agreement
(vi) the Company shall have delivered to the holders of Notes (A) a written request to include such Eligible Real Estate in the calculation of the Unencumbered Asset Value, (B) a physical description of such Eligible Real Estate, (C) a current Rent Roll and current operating statements for such Eligible Real Estate, (D) a certification as to the matters covered under Section 9.9(a)(i)-(v), and (E) such other information as the holders of Notes may reasonably require with respect to such Eligible Real Estate, including any information reasonably required by the holders of Notes to determine compliance with this Section 9.9 (collectively, the “Eligible Real Estate Qualification Documents”); and
(vii) such Eligible Real Estate has not been removed from the calculation of the Unencumbered Asset Value pursuant to Section 9.9(b), Section 9.9(c) or Section 9.9(d).
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged in any material respect or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, shall no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), and the Agent holders of Notes shall receive have received evidence reasonably satisfactory to the Agent Required Holders of the value of such real estate following such repair or restoration (both at such time and prospectively), ) or (ii) Agent Required Holders shall receive have received evidence reasonably satisfactory to the Agent Required Holders that the value of such real estate, estate (both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leasesprospectively) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in . In the event of a material adverse affect on the value (in Agent’s good faith determination) where some but not all of the leases relating to that such damage or condemnation only partially affects such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the calculation of the Unencumbered Asset Value, then the Required Holders may in good faith reduce the Unencumbered Asset Value subject attributable thereto based on such damage until such time as the Required Holders receive evidence reasonably satisfactory to Agent having reasonably approved an adjusted valuation the Required Holders that the value of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for real estate (both at such Eligible Real Estate (taking into account the reduced leasing of time and prospectively) shall no longer be materially adversely affected by such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estatedamage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset ValueValue unless otherwise approved in writing by the Required Holders (which approval shall not be unreasonably withheld, conditioned, or delayed). Within five (5) Business Days after becoming aware of any such disqualification, the Borrower Company shall deliver to the Agent holders of Notes 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 Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c)above, the Borrower Company shall deliver to the Agent a pro forma Compliance holders of Notes an updated Unencumbered Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §9.1this Section 9.9 and Section 10.10(a) and Section 10.10(b).
(d) In addition, the Borrower Company may voluntarily remove any Unencumbered Properties Real Estate from the calculation of the Unencumbered Asset Value by delivering to the Agentholders of Notes, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve)effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Gladstone Commercial Limited Partnership Note Purchase Agreement Subject Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower Company shall deliver to the Agent holders of Notes a pro forma Compliance Certificate and Unencumbered Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.22 this Section 9.9 and §9.1Section 10.10(a) and Section 10.10(b).
(e) In The Company shall promptly notify the event that any Subsidiary holders of Notes of the Borrower that is not a Guarantor addition or Unencumbered Property Subsidiary owns removal of any Real Estate which would otherwise qualify as an Unencumbered Property included in from the calculation of Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all of the terms and conditions of §5.2 are satisfied;
(ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunder.
Appears in 1 contract
Sources: Note Purchase Agreement (Gladstone Commercial Corp)
Unencumbered Properties. (a) The Subject to clause (b) of this §7.16, the Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate and equipment used therein shall be owned one hundred percent (100% %) in fee simple or leased under a Ground Lease by the Borrower or an Unencumbered Property Subsidiary (or, with respect to the assets commonly known as ACC7 and ACC8, by Alshain Ventures LLC and Yak Ventures LLC, respectively, provided that (A) Alshain Ventures LLC and Yak Ventures LLC are a Wholly Owned Subsidiaries of Borrower, (B) any Subsidiaries Subsidiary of Borrower owning or a direct or indirect interest in Alshain Ventures LLC or Yak Ventures LLC is Controlled JV Entity (each such Subsidiary and Controlled JV Entity, an “Unencumbered Property Subsidiary, and (C) Alshain Ventures LLC and Yak Ventures LLC shall have no Indebtedness other than Indebtedness of the type described in §8.1(a”), (b), (c), (e) and (h)). Such Eligible Real Estate and equipment used therein shall be free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II8.2(iii) and (iv)Other Permitted Liens, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documentsdocuments but excluding any such limitations permitted pursuant to the last sentence of §7.12(a), but for clarity, excluding (A) any restrictions in the nature of unencumbered asset financial covenants that are calculated with reference to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real Estate);
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, environmental, structural or other defects that would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or finance such property and (B) such Eligible Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6property;
(iii) If if such Real Estate is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related personal property, and, without limiting the ability assets of such Unencumbered Property Subsidiary (but specifically excluding Alshain Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness;
(iv) such Eligible Real Estate is managed by Borrower;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiary, or as permitted in §7.22(a)(i), Alshain Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property Subsidiary, Alshain Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries), and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Ventures LLC or Yak Ventures LLC, shall be subject to any Lien;
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ixiv) if multifamily Real Estate, such Real Estate is managed by Manager; and
(v) if such Unencumbered Property is owned or leased under a Ground Lease by an Unencumbered Property Subsidiary, (A) no Person other than the Borrower, or a direct or indirect Wholly Owned Subsidiary Guarantor of the Borrower has any direct or indirect ownership of any legal, equitable or beneficial interest in such Unencumbered Property Subsidiary owning (except that with respect to a Controlled JV Entity, all Equity Interests not required under this Agreement to be owned by Borrower may be owned by another Person), and (B) no direct or indirect ownership or other interests or rights of (1) Borrower in any such Unencumbered Property Subsidiary or (2) any Controlled JV Entity in a subsidiary of a Controlled JV Entity, shall be subject to any Lien.
b) Notwithstanding the foregoing, in the event any Real Estate does not qualify as Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with or satisfy the requirements of §7.2; and
(x) not more than fifteen percent (15.0%) of the Unencumbered Asset Value 7.16(a), such Real Estate shall be attributable to Eligible Real Estate located in Canada; provided that a failure to satisfy the requirements of this clause (x) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Value, but any Unencumbered Asset Value attributable thereto in excess so long as the Agent shall have received the prior written consent of each of the Required Lenders to the inclusion of such limitation shall be excluded for Real Estate in the purposes calculation of calculating Unencumbered Asset Value.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), 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 reasonably satisfactory to the Agent that the value of such real estate, both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leases) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in the event of a material adverse affect on the value (in Agent’s good faith determination) where some but not all of the leases relating to such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the Unencumbered Asset Value subject to Agent having reasonably approved an adjusted valuation of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for such Eligible Real Estate (taking into account the reduced leasing of such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estate.
(c) Upon any asset ceasing to qualify under §7.16(a) or (b) to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset Value. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c), the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §9.1.
(d) In addition, the Borrower may voluntarily remove any Unencumbered Properties Real Estate from the calculation of Unencumbered Asset Value by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve), notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.22 and §9.1its sole discretion.
(e) In the event that any Subsidiary of the Borrower that is not a Guarantor or Unencumbered Property Subsidiary owns Real Estate which would otherwise qualify as an Unencumbered Property included in the calculation of Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all of the terms and conditions of §5.2 are satisfied;
(ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunder.
Appears in 1 contract
Unencumbered Properties. (a) The Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate and equipment used therein shall be owned 100% in fee simple by Borrower or an Unencumbered Property a Subsidiary Guarantor (or, with respect to the assets commonly known as ACC7 and ACC8SC1 and 2, by Alshain Yak Ventures LLC and Yak Xeres Ventures LLC, respectively, provided that (A) Alshain Yak Ventures LLC and Yak Xeres Ventures LLC are Wholly Owned Subsidiaries of Borrower, (B) any Subsidiaries of Borrower owning a direct or indirect interest in Alshain Yak Ventures LLC or Yak Xeres Ventures LLC is an Unencumbered Property Subsidiarya Subsidiary Guarantor, and (C) Alshain Yak Ventures LLC and Yak Xeres Ventures LLC shall have no Indebtedness other than Indebtedness of the type described in §8.1(a), (b), (c), (e) and (he)). Such Eligible Real Estate and equipment used therein shall be free and clear of all Liens other than the Liens permitted in §8.2(i)(A), (i)(B)(II) and (iv), and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents), but for clarity, excluding (A) any restrictions in the nature of unencumbered asset financial covenants that are calculated with reference to such Eligible Real Estate and (B) asset sale limitations of general applicability under the terms of other Indebtedness that do not apply specifically to such Eligible Real Estate;
(ii) (A) none of the Eligible Real Estate or any equipment used therein shall have any material title, survey, structural or other defects that would give rise to a materially adverse effect as to the value, use of or ability to sell or finance such property and (B) such Eligible Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6;
(iii) If such Real Estate is owned by an Unencumbered Property Subsidiarya Subsidiary Guarantor, or as permitted in §7.22(a)(i), Alshain Xeres Ventures LLC or Yak Ventures LLC, the only asset of such Subsidiary shall be the Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related personal property, and, without limiting the ability of such Unencumbered Property Subsidiary Guarantor (but specifically excluding Alshain Xeres Ventures LLC and Yak Ventures LLC) to guaranty Unsecured Debt Indebtedness otherwise permitted hereunder, such Unencumbered Property Subsidiary Guarantor shall not be a borrower primary obligor or guarantor with respect to any other Indebtedness;
(iv) such Eligible Real Estate is managed by Borrower;
(v) prior to inclusion of Real Estate as an Unencumbered Property included in the calculation of the Unencumbered Asset Value, Borrower shall have delivered to Agent a physical description of the Real Estate and current operating statements, an operating and capital expenditure budget for such Real Estate reasonably satisfactory to the Agent, and such other information as Agent may reasonably require to determine the value attributable to such Real Estate for the purposes of §9.1 and compliance with this §7.22;
(vi) if such Unencumbered Property is owned by an Unencumbered Property Subsidiarya Subsidiary Guarantor, or as permitted in §7.22(a)(i), Alshain Xeres Ventures LLC or Yak Ventures LLC, Borrower shall directly or indirectly own 100% of all equity interests or other Voting Interests in such Unencumbered Property SubsidiarySubsidiary Guarantor, Alshain Xeres Ventures LLC or Yak Ventures LLC, respectively, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement (or if not, then Unencumbered Property Subsidiaries)Guarantors, and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor or in Alshain Xeres Ventures LLC or Yak Ventures LLC, shall be subject to any Lien;
(vii) such Real Estate has been designated as an “Unencumbered Asset Property” on Schedule 1.2 hereto or in a Compliance Certificate in accordance with §7.4(c) or delivered pursuant to this §7.22, and in any event has not been removed as an Unencumbered Property included in the calculation of the Unencumbered Asset Value pursuant to §7.22(b), §7.22(c) or §7.22(d);; and
(viii) all of the representations and warranties in this Agreement with respect to Unencumbered Properties are true and correct in all material respects, and no Default or Event of Default would exist if such Unencumbered Property is included in the calculation of Unencumbered Asset Value;
(ix) the Borrower, Subsidiary Guarantor or Unencumbered Property Subsidiary owning such Eligible Real Estate (and any other Subsidiaries of Borrower owning an interest in such Subsidiary) shall be organized under the laws of a State and shall have its principal place of business in the United States, consistent with the requirements of §7.2; and
(x) not more than fifteen percent (15.0%) of the Unencumbered Asset Value shall be attributable to Eligible Real Estate located in Canada; provided that a failure to satisfy the requirements of this clause (x) shall not result in any such Eligible Real Estate not being included in the calculation of Unencumbered Asset Value, but any Unencumbered Asset Value attributable thereto in excess of such limitation shall be excluded for the purposes of calculating Unencumbered Asset Value.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered Asset Value shall be materially damaged or taken by condemnation, then Borrower shall promptly notify the Agent thereof and such property may, at the reasonable determination of Agent, no longer be included in the calculation of the Unencumbered Asset Value unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational (if such property was a Stabilized Property), 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 reasonably satisfactory to the Agent that the value of such real estate, both at such time and prospectively (after giving consideration to such factors as Agent shall reasonably consider, including without including, limitation, the availability of insurance proceeds or condemnation awards, and the impact of such casualty or condemnation upon continued occupancy by tenants under their leases) shall not be materially adversely affected (in Agent’s good faith determination) by such damage or condemnation, provided that in the event of a material adverse affect on the value (in Agent’s good faith determination) where some but not all of the leases relating to such Eligible Real Estate may remain in effect after such casualty or condemnation, such property shall continue to be included in the Unencumbered Asset Value subject to Agent having reasonably approved an adjusted valuation of such Eligible Real Estate following receipt from Borrower of a proposed reduced valuation for such Eligible Real Estate (taking into account the reduced leasing of such Eligible Real Estate) together with such other information as Agent may reasonably request in order for Agent to evaluate and approve such proposed valuation for such Eligible Real Estate.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset Value. Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Unencumbered Asset Value attributable to such asset. Simultaneously with the delivery of the items required pursuant to this clause (c), the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §9.1.
(d) In addition, the Borrower may voluntarily remove any Unencumbered Properties from the calculation of Unencumbered Asset Value by delivering to the Agent, no later than five (5) Business Days prior to date on which such removal is to be effected (or such shorter period as the Agent may approve)effected, notice of such removal, together with a statement that no Default or Event of Default then exists or would, upon the occurrence of such event or with passage of time, result from such removal, and the identity of the Unencumbered Property being removed, and a calculation of the value attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the covenants contained in §7.22 and §9.1.
(e) In the event that any Subsidiary of the Borrower that is not a Guarantor or Unencumbered Property Subsidiary owns Real Estate which would otherwise qualify as an Unencumbered Property included in the calculation of Unencumbered Asset Value and the Borrower desires for the same to become an Unencumbered Property included in the calculation of Unencumbered Asset Value, then such property may become an Unencumbered Property included in the calculation of Unencumbered Asset Value but only in the event that:
(i) all of the terms and conditions of §5.2 are satisfied;
(ii) All representations in the Loan Documents herein of the Borrower and the Guarantors and their Subsidiaries shall be true and correct in all material respects with respect to such Subsidiary Guarantor;
(iii) No Default or Event of Default shall exist or might exist in the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such assets; and
(iv) The Real Estate assets acquired or owned by such Subsidiary Guarantor or Unencumbered Property Subsidiary shall qualify as Unencumbered Properties hereunder.
Appears in 1 contract