Borrowing Base Properties. 6.14.1 Each of the Borrowing Base Property Owners possesses such Licenses and Permits issued by the appropriate federal, state, or local regulatory agencies or bodies necessary to develop, own and operate (as applicable) each Borrowing Base Property given status of the development of the Borrowing Base Property, except where the failure to possess any such License or Permit would not have a Material Adverse Effect. The Borrowing Base Property Owners are in material compliance with the terms and conditions of all such Licenses and Permits, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Licenses and Permits are valid and in full force and effect, except where the invalidity of such Licenses and Permits or the failure of such Licenses and Permits to be in full force and effect would not result in a Material Adverse Effect. Neither the Borrower nor any of the Borrowing Base Property Owners has received any written notice of proceedings relating to the revocation or modification of any such Licenses and Permits which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. 6.14.2 (i) The Borrowing Base Property Owners have either (x) fee simple title to the Borrowing Base Properties or (y) a leasehold estate interest in the Borrowing Base Properties, as set forth in Schedule 6.14.2(i) (as such may be updated from time to time in accordance with Section 6.22); (ii) the interest of the Borrowing Base Property Owners in the Borrowing Base Properties are not subject to any Liens except for those in favor of the Administrative Agent for the ratable benefit of the Lenders securing the repayment of Obligations and other Permitted Liens; (iii) neither the Borrower nor any of the Borrowing Base Property Owners has received written notice of the assertion of any claim by anyone adverse to any Loan Party’s ownership, or leasehold rights in and to any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with Section 6.22); and (iv) no Person has an option or right of first refusal to purchase all or part of any Borrowing Base Property or any interest therein which has not been waived (except as may be disclosed in Schedule 6.14.2(i) or in any update from time to time in accordance with Section 6.22); 6.14.3 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect or is disclosed in the Environmental Reports (as defined in the Environmental Indemnity) (i) each Borrowing Base Property is free of any Hazardous Materials in violation of any Environmental Legal Requirements applicable to such property; (ii) none of the Borrowing Base Property Owners or Borrower has received any written notice of a claim under or pursuant to any Environmental Legal Requirements applicable to a Borrowing Base Property or under common law pertaining to Hazardous Materials on or originating from any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with Section 6.22); and (iii) none of the Borrowing Base Property Owners or Borrower has received any written notice from any Governmental Authority claiming any material violation of any Environmental Legal Requirements that is uncured or unremediated (except as may be disclosed in any update from time to time in accordance with Section 6.22); 6.14.4 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) with respect to the Borrowing Base Properties, each Major Lease is in full force and effect (except as may be disclosed in any update from time to time in accordance with Section 6.22), (ii) except as set forth in Schedule 6.14.4(ii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s knowledge, none of the Borrowing Base Property Owners is in default after notice and the expiration of all applicable cure periods in the performance of any material obligation under any Major Lease and the Borrower has no knowledge of any circumstances which, with the passage of time or the giving of notice, or both, would constitute an event of default by any party under any of the Major Leases, (iii) except as set forth in Schedule 6.14.4(iii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s knowledge, no tenant is in default under any Major Lease, (iv) except as otherwise expressly set forth in Schedule 6.14.4(iv) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s Knowledge, there are no actions, voluntary or involuntary, pending against any tenant under a Major Lease under any bankruptcy or insolvency laws, and (v) none of the Major Leases and none of the rents or other amounts payable thereunder has been assigned, pledged or encumbered by any of the Borrowing Base Property Owners or any other Person, except with respect to the Lien in favor of the Administrative Agent on behalf of the Lenders securing the repayment of Obligations. 6.14.5 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) each Ground Lease with respect to a Borrowing Base Property is valid, binding and in full force and effect as against the applicable Borrowing Base Property Owners and, to the Borrower’s knowledge, the other party thereto, (ii) none of Borrowing Base Property Owner’s interest in the Ground Leases is subject to any pledge, lien, assignment, license or other agreement granting to any third party any interest therein, and (iii) no payments under any Ground Lease with respect to a Borrowing Base property are delinquent and no notice of default thereunder has been sent or received by any Loan Party which has not been cured or waived prior to the date hereof, and to the knowledge of the Borrower, there does not exist under any of the Ground Leases any default by any Borrowing Base Property Owners or any event which merely with notice or lapse of time or both, would constitute such a default by any of the Borrowing Base Property Owners, and (iv) the identity of each ground lessor under a Ground Lease with respect to a Borrowing Base Property and whether each such ground lessor is an Affiliate of any Loan Party are set forth in Schedule 6.14.5.
Appears in 3 contracts
Sources: Loan Agreement (Cedar Shopping Centers Inc), Loan Agreement (Cedar Shopping Centers Inc), Loan Agreement (Cedar Shopping Centers Inc)
Borrowing Base Properties. 6.14.1 Each Schedule 2 contains a correct and complete list of all Borrowing Base Properties as of the Effective Date, including applicable ownership information. With respect to each Borrowing Base Property from time to time:
(a) no Borrowing Base Property with respect to which Mortgage has been delivered to the Administrative Agent is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law or, if any portion of the buildings on such Borrowing Base Properties are located within any such area, the Borrower or applicable Subsidiary Guarantor has obtained and will maintain through the Maturity Date the flood insurance prescribed in Section 8.5 hereof (including Schedule 8.5);
(b) each of the Borrowing Base Property Owners possesses such Licenses Properties and Permits issued by the appropriate federal, state, or local regulatory agencies or bodies necessary to develop, own present use and operate (as applicable) each Borrowing Base Property given status of the development of the Borrowing Base Property, except where the failure to possess any such License or Permit would not have a Material Adverse Effect. The Borrowing Base Property Owners occupancy thereof are in material compliance with all zoning ordinances (without reliance upon adjoining or other properties), health, fire and building codes, land use laws (including those regulating parking) and Environmental Laws (except as disclosed on the terms environmental assessments delivered to the Administrative Agent and conditions accepted by the Administrative Agent and the Requisite Lenders pursuant to this Agreement or as otherwise permitted under the definition of all such Licenses Eligible Property) and Permits, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Licenses and Permits are valid and in full force and effect, except where the invalidity of such Licenses and Permits or the failure of such Licenses and Permits to be in full force and effect would not result in a Material Adverse Effect. Neither the Borrower nor any other Applicable Laws;
(c) each of the Borrowing Base Property Owners has received any written notice Properties is served by all utilities required for the current or contemplated use thereof;
(d) all public roads and streets necessary for service of proceedings relating and access to the revocation or modification each of any such Licenses and Permits which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
6.14.2 (i) The Borrowing Base Property Owners have either (x) fee simple title to the Borrowing Base Properties for the current or contemplated use thereof have been completed, and are open for use by the public, or appropriate insured private easements are in place;
(ye) a leasehold estate interest in the Borrower is not aware of any material latent or patent structural or other significant deficiency of the Borrowing Base Properties, as set forth in Schedule 6.14.2(i;
(f) (as such may be updated from time to time in accordance with Section 6.22); (ii) the interest each of the Borrowing Base Property Owners in Properties is free of damage and waste that would materially and adversely affect the value of such Borrowing Base Properties are not Property, is in good condition and repair subject to any Liens except for those items set forth in favor of any property condition report delivered to and approved by the Administrative Agent for and the ratable benefit Requisite Lenders or as otherwise permitted under the definition of the Lenders securing the repayment of Obligations Eligible Property, and other Permitted Liens; (iii) neither the Borrower nor any of the Borrowing Base Property Owners has received written notice of the assertion of any claim by anyone adverse to any Loan Party’s ownership, or leasehold rights in and to any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with Section 6.22); and (iv) no Person has an option or right of first refusal to purchase all or part of any Borrowing Base Property or any interest therein which has not been waived (except as may be disclosed in Schedule 6.14.2(i) or in any update from time to time in accordance with Section 6.22);
6.14.3 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect or is disclosed in the Environmental Reports (as defined in the Environmental Indemnity) (i) each Borrowing Base Property is free of any Hazardous Materials in violation of any Environmental Legal Requirements applicable to such property; (ii) none of the Borrowing Base Property Owners or Borrower has received any written notice of a claim under or pursuant to any Environmental Legal Requirements applicable to a Borrowing Base Property or under common law pertaining to Hazardous Materials on or originating from any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with Section 6.22); and (iii) none of the Borrowing Base Property Owners or Borrower has received any written notice from any Governmental Authority claiming any material violation of any Environmental Legal Requirements that is uncured or unremediated (except as may be disclosed in any update from time to time in accordance with Section 6.22);
6.14.4 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) with respect to the Borrowing Base Properties, each Major Lease is in full force and effect (except as may be disclosed in any update from time to time in accordance with Section 6.22), (ii) except as set forth in Schedule 6.14.4(ii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s knowledge, none there is no deferred maintenance other than ordinary wear and tear;
(g) each of the Borrowing Base Property Owners Properties is in default after notice and the expiration of all applicable cure periods in the performance of any material obligation under any Major Lease and the Borrower has no knowledge of any circumstances which, with the passage of time free from damage caused by fire or the giving of noticeother casualty that is not covered by proceeds of, or bothvalid claims under, would constitute an event of default the insurance required by any party under any Section 8.5;
(h) to the Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Borrowing Base Properties are (i) in a good and safe condition and repair and (ii) in material compliance with all Applicable Laws with respect to such systems;
(i) all improvements on the Borrowing Base Properties lie within the boundaries and building restrictions of the Major Leaseslegal descriptions of record of the Borrowing Base Properties, (iii) except as set forth in Schedule 6.14.4(iii) (as such may be updated from time to time in accordance with Section 6.22)no improvements encroach upon easements benefiting the Borrowing Base Properties other than encroachments that do not materially adversely affect the use or occupancy of the Borrowing Base Properties and, to the Borrower’s knowledge, no tenant is in default under any Major Lease, improvements on adjoining properties encroach upon the Borrowing Base Properties or upon easements benefiting the Borrowing Base Properties other than encroachments that do not materially adversely affect the use or occupancy of the Borrowing Base Properties;
(iv) except as otherwise expressly set forth in Schedule 6.14.4(ivj) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s Knowledge, x) there are no actionsmaterial delinquent property taxes, voluntary ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or involuntaryother outstanding charges affecting the Borrowing Base Properties except to the extent such items are being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided and there is no risk of loss, pending against forfeiture, or sale of any tenant under a Major Lease under any bankruptcy or insolvency laws, interest in the Borrowing Base Properties during such proceedings; and (vy) none each of the Major Leases and none of Borrowing Base Properties is subject to property taxes separately without regard to any other property not included in the rents Borrowing Base Properties;
(k) no condemnation proceeding or other amounts payable thereunder has been assigned, pledged eminent domain action is pending or encumbered by threatened against any of the Borrowing Base Property Owners Properties;
(l) each of the Borrowing Base Properties is not, nor is any direct or indirect interest of the Borrower or any Subsidiary Guarantor in any Borrowing Base Properties, subject to any Lien other Person, except with respect (other than Eligible Property Permitted Liens) or to any Negative Pledge (other than the Liens and Negative Pledges created pursuant to the Lien in favor Loan Documents to secure the obligations of the Administrative Agent on behalf Loan Parties); and
(m) each of the Lenders securing Mortgages (which, for the repayment avoidance of Obligations.
6.14.5 Except to doubt, includes Mortgages only on the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) each Ground Lease with respect to a Existing Borrowing Base Property is valid, binding and in full force and effect as Properties unless otherwise required hereby) creates a valid first priority Lien against the applicable Borrowing Base Property Owners and, to the Borrower’s knowledge, the other party thereto, (ii) none of Borrowing Base Property Owner’s interest in the Ground Leases is subject to any pledge, lien, assignment, license or other agreement granting to any third party any interest therein, and (iii) no payments under any Ground Lease with respect to a Borrowing Base property are delinquent and no notice of default thereunder has been sent or received by any Loan Party which has not been cured or waived prior to the date hereof, and to the knowledge of the Borrower, there does not exist under any of the Ground Leases any default by any Borrowing Base Property Owners or any event which merely with notice or lapse of time or both, would constitute such a default by any of the Borrowing Base Property Owners, and (iv) the identity of each ground lessor under a Ground Lease with respect to a Borrowing Base Property and whether each such ground lessor is an Affiliate of any Loan Party are set forth in Schedule 6.14.5Property.
Appears in 1 contract
Sources: Credit Agreement (HC Government Realty Trust, Inc.)
Borrowing Base Properties. 6.14.1 Each of the Borrowing Base Property Owners possesses such Licenses and Permits issued by the appropriate federal, state, or local regulatory agencies or bodies necessary to develop, own and operate (as applicable) each Borrowing Base Property given status of the development of the Borrowing Base Property, except where the failure to possess any such License or Permit would not have a Material Adverse Effect. The Borrowing Base Property Owners are in material compliance with the terms and conditions of all such Licenses and Permits, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Licenses and Permits are valid and in full force and effect, except where the invalidity of such Licenses and Permits or the failure of such Licenses and Permits to be in full force and effect would not result in a Material Adverse Effect. Neither the Borrower nor any of the Borrowing Base Property Owners has received any written notice of proceedings relating to the revocation or modification of any such Licenses and Permits which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
6.14.2 (i) The Borrowing Base Property Owners have either (x) fee simple title to the Borrowing Base Properties or (y) a leasehold estate interest in the Borrowing Base Properties, as set forth in Schedule 6.14.2(i) (as such may be updated from time to time in accordance with Section 6.22); (ii) the interest of the Borrowing Base Property Owners in the Borrowing Base Properties are not subject to any Liens except for those in favor of the Administrative Agent for the ratable benefit of the Lenders securing the repayment of Obligations and other Permitted Liens; , (iii) neither the Borrower nor any of the Borrowing Base Property Owners has received written notice of the assertion of any claim by anyone adverse to any Loan Party’s 's ownership, or leasehold rights in and to any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with Section 6.22); and (iv) no Person has an option or right of first refusal to purchase all or part of any Borrowing Base Property or any interest therein which has not been waived (except as may be disclosed in Schedule 6.14.2(i) or in any update from time to time in accordance with Section 6.22);
6.14.3 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect or is disclosed in the Environmental Reports (as defined in the Environmental Indemnity) or in the S-11 registration statement filed by CSC on October 23, 2003, (i) each Borrowing Base Property is free of any Hazardous Materials in violation of any Environmental Legal Requirements applicable to such property; (ii) none of the Borrowing Base Property Owners or Borrower has received any written notice of a claim under or pursuant to any Environmental Legal Requirements applicable to a Borrowing Base Property or under common law pertaining to Hazardous Materials on or originating from any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with Section 6.22); and (iii) none of the Borrowing Base Property Owners or Borrower has received any written notice from any Governmental Authority claiming any material violation of any Environmental Legal Requirements that is uncured or unremediated (except as may be disclosed in any update from time to time in accordance with Section 6.22);
6.14.4 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) with respect to the Borrowing Base Properties, each Major Lease is in full force and effect (except as may be disclosed in any update from time to time in accordance with Section 6.22), (ii) except as set forth in Schedule 6.14.4(ii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s 's knowledge, none of the Borrowing Base Property Owners is in default after notice and the expiration of all applicable cure periods in the performance of any material obligation under any Major Lease and the Borrower has no knowledge of any circumstances which, with the passage of time or the giving of notice, or both, would constitute an event of default by any party under any of the Major Leases, (iii) except as set forth in Schedule 6.14.4(iii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s 's knowledge, no tenant is in default under any Major Lease, (iv) except as otherwise expressly set forth in Schedule 6.14.4(iv) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s 's Knowledge, there are no actions, voluntary or involuntary, pending against any tenant under a Major Lease under any bankruptcy or insolvency laws, and (v) none of the Major Leases and none of the rents or other amounts payable thereunder has been assigned, pledged or encumbered by any of the Borrowing Base Property Owners or any other Person, except with respect to the Lien in favor of the Administrative Agent on behalf of the Lenders securing the repayment of Obligations.
6.14.5 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) each Ground Lease with respect to a Borrowing Base Property is valid, binding and in full force and effect as against the applicable Borrowing Base Property Owners and, to the Borrower’s 's knowledge, the other party thereto, (ii) none of Borrowing Base Property Owner’s 's interest in the Ground Leases is subject to any pledge, lien, assignment, license or other agreement granting to any third party any interest therein, and (iii) no payments under any Ground Lease with respect to a Borrowing Base property are delinquent and no notice of default thereunder has been sent or received by any Loan Party which has not been cured or waived prior to the date hereof, and to the knowledge of the Borrower, there does not exist under any of the Ground Leases any default by any Borrowing Base Property Owners or any event which merely with notice or lapse of time or both, would constitute such a default by any of the Borrowing Base Property Owners, and (iv) the identity of each ground lessor under a Ground Lease with respect to a Borrowing Base Property and whether each such ground lessor is an Affiliate of any Loan Party are set forth in Schedule 6.14.5.
Appears in 1 contract
Borrowing Base Properties. 6.14.1 Each As at the end of any Fiscal Quarter or any other date of measurement, the Borrower shall not permit Unsecured Consolidated Total Indebtedness (exclusive of Accounts Payable, but including amounts outstanding under the Revolving Credit Loans and Existing Revolving Credit Agreement Letters of Credit after giving effect to loan requests made pursuant to the Existing Revolving Credit Agreement) to equal or exceed 55% of the aggregate Borrowing Base Value, PROVIDED that in the event that Consolidated Total Indebtedness exceeds 60% of 61 Consolidated Total Adjusted Asset Value at any time, the Borrower shall not permit the Unsecured Consolidated Total Indebtedness (exclusive of Accounts Payable, but including the outstanding principal amount of Revolving Credit Loans and the aggregate undrawn face amount of all outstanding Existing Revolving Credit Agreement Letters of Credit after giving effect to loan requests pursuant to the Existing Revolving Credit Agreement) to equal or exceed 50% of the aggregate Borrowing Base Value. Except for the Exception Property, not more than 15% of the Borrowing Base Property Owners possesses such Licenses and Permits issued by the appropriate federal, state, or local regulatory agencies or bodies necessary to develop, own and operate (as applicable) each Value shall be derived from any single Borrowing Base Property. One Borrowing Base Property given status of (the development "Exception Property") (but not more than one property), which property can differ from time to time, as designated by Borrower) can constitute up to 25% of the Borrowing Base Value, PROVIDED that the Exception Property (i) must be CBD Property, except where and (ii) may not be a hotel property. Notwithstanding anything in this Section 7.6(b) to the failure to possess any such License or Permit would not have a Material Adverse Effect. The Borrowing Base Property Owners are in material compliance with the terms and conditions of all such Licenses and Permitscontrary, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All as of the Licenses Closing Date, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ shall be considered compliant with this Section 7.6(b) and Permits are valid and in full force and effect, except where shall be designated the invalidity of such Licenses and Permits or the failure of such Licenses and Permits Exception Property. It is further acknowledged that ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ may constitute up to be in full force and effect would not result in a Material Adverse Effect. Neither the Borrower nor any 46% of the Borrowing Base Property Owners has received any written notice Value, PROVIDED that ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ must at all times meet the requirements of proceedings relating to the revocation or modification of any such Licenses and Permits which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
6.14.2 (i) The Borrowing Base Property Owners have either (x) fee simple title to and must be a CBD Property. The Borrower certifies that, as of the date hereof, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ is an Unencumbered Asset and meets each of the Borrowing Base Properties or (y) Conditions and the Borrower hereby designates ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ as a leasehold estate interest Borrowing Base Property, and on that basis the Lead Lenders agree that ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ will be included in the Borrowing Base Properties, as set forth in Schedule 6.14.2(i) (of the effective date above. The Borrower and the Administrative Agent hereby designate ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ as such may be updated from time to time in accordance with Section 6.22); (ii) the interest a CBD Property. For purposes of determining the Borrowing Base Property Owners in Value for this Section 7.6, the Borrowing Base Properties are not subject to any Liens except for those in favor of the Administrative Agent for the ratable benefit of the Lenders securing the repayment of Obligations and other Permitted Liens; (iii) neither the Borrower nor any of the Borrowing Base Property Owners has received written notice of the assertion of any claim by anyone adverse to any Loan Party’s ownership, or leasehold rights in and to any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with Section 6.22); and (iv) no Person has an option or right of first refusal to purchase all or part Net Operating Income of any Borrowing Base Property or any interest therein which has not been waived (except as may acquired during such prior Fiscal Quarter shall be disclosed in Schedule 6.14.2(i) or in any update from time to time in accordance with Section 6.22);
6.14.3 Except to adjusted on a pro-forma basis by projecting the extent the failure of the following to be true would not result in a Material Adverse Effect or is disclosed in the Environmental Reports (as defined in the Environmental Indemnity) (i) Net Operating Income generated by each such acquired Borrowing Base Property is free for the portion of the quarter during which it was owned or ground leased by the Borrower over the entire quarter. Notwithstanding the Borrowing Base Conditions, in the event that the Borrower desires to include any Hazardous Materials Unencumbered Asset in violation of any Environmental Legal Requirements applicable to such property; (ii) none the Borrowing Base that does not meet one or more of the Borrowing Base Property Owners or Conditions, any such Unencumbered Asset shall only be permitted to be included in the Borrowing Base in the event that (i) the Borrower has received submitted to the Administrative Agent a compliance certificate in the form of EXHIBIT D-5, modified to reflect the non-conformity of the proposed Borrowing Base Property, and (ii) the Required Banks have provided the Borrower with written approval, in their sole discretion, for such non-conforming Unencumbered Asset to be included in the Borrowing Base. Upon any such written notice of a claim under or pursuant to any Environmental Legal Requirements applicable to approval by the Required Banks, such Unencumbered Asset shall be considered a Borrowing Base Property or under common law pertaining to Hazardous Materials for all purposes hereunder, PROVIDED that on or originating from the date of inclusion of any such Unencumbered Asset in the Borrowing Base Property (except as may be disclosed in any update from time to time and thereafter in accordance with Section 6.22the terms of this Agreement); and (iii) none of , such Unencumbered Asset is otherwise in compliance with the Borrowing Base Property Owners or Borrower has received any written notice from any Governmental Authority claiming any material violation of any Environmental Legal Requirements that is uncured or unremediated (except as may be disclosed in any update from time to time in accordance with Section 6.22);
6.14.4 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) Conditions other than with respect to the Borrowing Base Properties, each Major Lease is in full force non-conformity as certified by the Borrower and effect (except as may be disclosed in any update from time to time in accordance with Section 6.22), (ii) except as set forth in Schedule 6.14.4(ii) (as such may be updated from time to time in accordance with Section 6.22), to approved by the Borrower’s knowledge, none of the Borrowing Base Property Owners is in default after notice and the expiration of all applicable cure periods Required Banks in the performance of any material obligation under any Major Lease and compliance certificate submitted by the Borrower has no knowledge of any circumstances which, with the passage of time or the giving of notice, or both, would constitute an event of default by any party under any of the Major Leases, (iii) except as set forth in Schedule 6.14.4(iii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s knowledge, no tenant is in default under any Major Lease, (iv) except as otherwise expressly set forth in Schedule 6.14.4(iv) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s Knowledge, there are no actions, voluntary or involuntary, pending against any tenant under a Major Lease under any bankruptcy or insolvency laws, and (v) none of the Major Leases and none of the rents or other amounts payable thereunder has been assigned, pledged or encumbered by any of the Borrowing Base Property Owners or any other Person, except with respect to the Lien in favor of the Administrative Agent on behalf of the Lenders securing the repayment of Obligations.
6.14.5 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, clause (i) each Ground Lease with respect to of the preceding sentence, and PROVIDED, FURTHER that there is otherwise no Default or Event of Default existing upon the date of, or arising as a Borrowing Base Property is valid, binding and in full force and effect as against the applicable Borrowing Base Property Owners and, to the Borrower’s knowledgeresult of, the other party thereto, (ii) none inclusion of Borrowing Base Property Owner’s interest such Unencumbered Asset in the Ground Leases is subject to any pledge, lien, assignment, license or other agreement granting to any third party any interest therein, and (iii) no payments under any Ground Lease with respect to a Borrowing Base property are delinquent and no notice of default thereunder has been sent or received by any Loan Party which has not been cured or waived prior to the date hereof, and to the knowledge of the Borrower, there does not exist under any of the Ground Leases any default by any Borrowing Base Property Owners or any event which merely with notice or lapse of time or both, would constitute such a default by any of the Borrowing Base Property Owners, and (iv) the identity of each ground lessor under a Ground Lease with respect to a Borrowing Base Property and whether each such ground lessor is an Affiliate of any Loan Party are set forth in Schedule 6.14.5Base.
Appears in 1 contract
Borrowing Base Properties. 6.14.1 (a) Each of the Property identified by Borrower as a Borrowing Base Property Owners possesses in the most-recent Borrowing Base Report delivered to Administrative Agent hereunder satisfies the criteria set forth in the definition of Borrowing Base and no Exclusion Event has occurred and is continuing with respect to any such Licenses and Permits issued by the appropriate federal, state, or local regulatory agencies or bodies necessary to develop, own and operate Property.
(as applicableb) each Each Borrowing Base Property given status of the development of the Borrowing Base Propertycomplies in all material respects with all Laws, except where the failure to possess including all subdivision and platting requirements, without reliance on any such License adjoining or Permit would neighboring property.
(c) The Improvements comply in all material respects with all Laws regarding access and facilities for handicapped or disabled persons.
(d) The Improvements have not have a Material Adverse Effect. The suffered any Casualty or otherwise been damaged (ordinary wear and tear excepted) and not repaired.
(e) No Borrowing Base Property Owners are in material compliance with the terms and conditions of all such Licenses and Permits, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Licenses and Permits are valid and in full force and effect, except where the invalidity of such Licenses and Permits or the failure of such Licenses and Permits to be in full force and effect would not result in a Material Adverse Effect. Neither the Borrower nor any of the Borrowing Base Property Owners has received any written notice of proceedings relating to the revocation or modification of any such Licenses and Permits which, singly or in the aggregate, if is the subject of an unfavorable decisionany pending or, ruling or finding, would result in a Material Adverse Effect.
6.14.2 (i) The Borrowing Base Property Owners have either (x) fee simple title to the Borrowing Base Properties or (y) a leasehold estate interest in the Borrowing Base Properties, as set forth in Schedule 6.14.2(i) (as such may be updated from time to time in accordance with Section 6.22); (ii) the interest of the Borrowing Base Property Owners in the Borrowing Base Properties are not subject to any Liens except for those in favor of the Administrative Agent for the ratable benefit of the Lenders securing the repayment of Obligations and other Permitted Liens; (iii) neither the Borrower nor any of the Borrowing Base Property Owners has received written notice of the assertion of any claim by anyone adverse to any Loan Party’s ownershipknowledge, threatened Condemnation or adverse zoning proceeding.
(f) No Loan Party has directly or indirectly conveyed, assigned, or leasehold rights in and otherwise disposed of, or transferred (or agreed to do so) any development rights, air rights, or other similar rights, privileges, or attributes with respect to any Borrowing Base Property Properties, including those arising under any zoning or property use ordinance or other Law.
(except as may be disclosed in g) All utility services necessary for the use of the Borrowing Base Properties and the Improvements and the operation thereof for their intended purpose are available at the Borrowing Base Property.
(h) No Loan Party has made any update from time to time in accordance with Section 6.22); and (iv) no Person has an option contract or right of first refusal to purchase all or part arrangement of any kind the performance of which by the other party thereto would give rise to Liens on the Borrowing Base Properties.
(i) No Borrowing Base Property is part of a larger tract of Property owned by any Loan Party or otherwise included under any interest therein which has unity of title or similar covenant with other Property not been waived (except as may be disclosed in Schedule 6.14.2(i) or in any update from time to time in accordance with Section 6.22);
6.14.3 Except to the extent the failure of the following to be true would not result in owned by a Material Adverse Effect or is disclosed in the Environmental Reports (as defined in the Environmental Indemnity) (i) Loan Party and each Borrowing Base Property is free constitutes a separate tax lot or lots with a separate tax assessment or assessments for such Borrowing Base Property and the Improvements thereon, independent of those for any Hazardous Materials other Property or improvements.
(j) The Property Plans for each Borrowing Base Property have been approved by all applicable Governmental Authorities and comply in violation of any Environmental Legal Requirements all material respects with all applicable to such property; Laws, restrictive covenants, rules and regulations.
(iik) none The current and anticipated use of the Borrowing Base Property Owners or Borrower has received any written notice of a claim under or pursuant to any Environmental Legal Requirements Properties complies in all material respects with all applicable to a Borrowing Base Property or under common law pertaining to Hazardous Materials on or originating from any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with Section 6.22); zoning ordinances, regulations, and (iii) none of restrictive covenants affecting the Borrowing Base Property Owners Properties without the existence of any variance, non-complying use, nonconforming use, or Borrower has received any written notice from other special exception, all use restrictions of any Governmental Authority claiming any having jurisdiction have been satisfied in all material respects, and no violation of any Environmental Legal Requirements that is uncured Law or unremediated (except as may be disclosed in any update from time to time in accordance with Section 6.22);
6.14.4 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) regulation exists with respect to the Borrowing Base Properties, each Major Lease is in full force and effect (except as may be disclosed in any update from time to time in accordance with Section 6.22), (ii) except as set forth in Schedule 6.14.4(ii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s knowledge, none of the Borrowing Base Property Owners is in default after notice and the expiration of all applicable cure periods in the performance of any material obligation under any Major Lease and the Borrower has no knowledge of any circumstances which, with the passage of time or the giving of notice, or both, would constitute an event of default by any party under any of the Major Leases, (iii) except as set forth in Schedule 6.14.4(iii) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s knowledge, no tenant is in default under any Major Lease, (iv) except as otherwise expressly set forth in Schedule 6.14.4(iv) (as such may be updated from time to time in accordance with Section 6.22), to the Borrower’s Knowledge, there are no actions, voluntary or involuntary, pending against any tenant under a Major Lease under any bankruptcy or insolvency laws, and (v) none of the Major Leases and none of the rents or other amounts payable thereunder has been assigned, pledged or encumbered by any of the Borrowing Base Property Owners or any other Person, except with respect to the Lien in favor of the Administrative Agent on behalf of the Lenders securing the repayment of Obligationsthereto.
6.14.5 Except to the extent the failure of the following to be true would not result in a Material Adverse Effect, (i) each Ground Lease with respect to a Borrowing Base Property is valid, binding and in full force and effect as against the applicable Borrowing Base Property Owners and, to the Borrower’s knowledge, the other party thereto, (ii) none of Borrowing Base Property Owner’s interest in the Ground Leases is subject to any pledge, lien, assignment, license or other agreement granting to any third party any interest therein, and (iii) no payments under any Ground Lease with respect to a Borrowing Base property are delinquent and no notice of default thereunder has been sent or received by any Loan Party which has not been cured or waived prior to the date hereof, and to the knowledge of the Borrower, there does not exist under any of the Ground Leases any default by any Borrowing Base Property Owners or any event which merely with notice or lapse of time or both, would constitute such a default by any of the Borrowing Base Property Owners, and (iv) the identity of each ground lessor under a Ground Lease with respect to a Borrowing Base Property and whether each such ground lessor is an Affiliate of any Loan Party are set forth in Schedule 6.14.5.
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