Property Pool. The Borrower will at all times own fee simple title ------------- to real estate properties that are not mortgaged, pledged, hypothecated, or encumbered in any manner other than Permitted Encumbrances (the "Pool") with an ---- aggregate Historical Value (plus all cash balances held by the Borrower if and whenever the unpaid balance of the Loans is zero) of at least one hundred seventy-five percent (175%) of the Borrower's unsecured Indebtedness outstanding from time to time, with the following characteristics: (a) the Pool must include income producing operating properties (the "Operating Sub-Pool") with an ------------------ aggregate Operating Sub-Pool Value of at least one hundred fifty percent (150%) of the Borrower's unsecured Indebtedness outstanding from time to time, (b) each individual property in the Operating Sub-Pool must have an occupancy level of at least eighty percent (80%), where such occupancy level is the average of the actual occupancy level for each of the immediately preceding three (3) months, (c) any properties added to the Operating Sub-Pool after the date of this Agreement must be multifamily properties, and (d) the Borrower must have received from third party independent environmental consultants, written assessments for each property in, or to be added to, the Operating Sub-Pool that do not disclose any material environmental conditions or risks related to such properties. If requested by the Agent and\or the Co-Agent, the Borrower will provide to the Agent and the Co-Agent written assessments from third party independent environmental consultants for all real estate properties acquired after the date of this Agreement. If the Agent determines that there are material environmental conditions existing on or risks to such properties, the properties will be excluded from the Pool.
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Property Pool. (a) The Borrower will and, subject to Section 5.15(b), the Borrower's Subsidiaries will, at all times own (in fee simple title ------------- to real estate properties or through an Eligible Ground Lease) a pool (the "Pool") of assets that are not mortgaged, pledged, hypothecated, or encumbered in any manner manner, other than Permitted Encumbrances (the "Pool") Encumbrances, with an ---- aggregate Historical Value (plus all cash balances held by calculated based on the Borrower if immediately preceding six (6) calendar months and whenever annualized) such that the unpaid balance of the Loans is zero) of at least one hundred seventy-five percent (175%) total amount of the Borrower's unsecured Indebtedness other than Secured Debt outstanding from time to time, with shall never be greater than fifty-five percent (55%) of such Value. Such Pool shall have the following characteristics:
: (i) assets in the Pool shall be completed income producing Industrial Buildings with net rentable area of not less than 30,000 square feet (based on the number of square feet of the Industrial Buildings owned by the Borrower or its Subsidiary within one (1) mile of each other and treated as one property by such Person), with parking sufficient to meet all Legal Requirements and consistent with market conditions that will accommodate full occupancy of the building, provided, however, that Los Angeles ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, will not be excluded from the Pool because it is not an Industrial Building; (ii) assets in the Pool (other than the assets listed in the proviso of clause (a) the Pool must include income producing operating properties (the "Operating Sub-Pool"above) with an ------------------ aggregate Operating Sub-Pool Value of at least one hundred fifty percent (150%) of the Borrower's unsecured Indebtedness outstanding from time to time, (b) each individual property in the Operating Sub-Pool must have an occupancy level of at least eighty percent (80%), where such occupancy level is the average of the actual occupancy level for each of the immediately preceding three (3) months, (c) any properties added to the Operating Sub-Pool after the date of this Agreement must be multifamily properties, and located in Approved Markets; (diii) the Borrower must have received from third party independent environmental consultants, written assessments (including, without limitation, Phase I environmental reports) for each property Property in, or to be added to, the Operating Sub-Pool that do not disclose any material environmental conditions conditions, structural defects or title defects, or other material risks related to such propertiesProperty, (iv) the Property is not subject to or affected by any Limiting Agreement, and (v) the Occupancy Level of the Pool in the aggregate must be at least eighty percent (80%). If requested by the Agent and\or the Co-Agent, the Borrower will provide to the Agent and the Co-Agent written assessments from third party independent environmental consultants for all real estate Pool properties acquired after the date of this Agreement. If the Agent determines that there are material environmental conditions existing on or risks to such properties, the properties will be excluded from the Pool.
(b) Notwithstanding the foregoing, (i) the maximum Value of the Pool that consists of Eligible Ground Leases is fifteen percent (15%) of the Value of the Pool, before adding the effect of said Property; and (ii) the maximum Value of the Pool attributable to a single Property is fifteen percent (15%) of the Value of the Pool before adding the effect of said Property.
(c) If any Property to be included in the Pool is owned by a Subsidiary of Borrower, it may be included in the Pool only if:
(i) the owner of the Property is either (A) a wholly owned Subsidiary of the Borrower or (B) if not a wholly owned Subsidiary, then (1) the Value of the Property owned by such Subsidiary ("Partial Subsidiary Real Estate") to be used in the calculation in clause (a) above shall be as provided in clause (a) multiplied by the cumulative percentage interest of the Subsidiary owned by the Borrower, (2) the maximum value of the Pool that can be attributable to Partial Subsidiary Real Estate is ten percent (10%) of the value of the Pool before adding the effect of the Partial Subsidiary Real Estate, and (3) the Borrower owns at least seventy-five percent (75%) of the indicia of ownership of the Subsidiary, and controls all major decisions regarding the Partial Subsidiary Real Estate, including the right to sell or refinance the Partial Subsidiary Real Estate; and
(ii) the owner of the Property (A) executes a Guaranty in Proper Form and delivers it to the Agent, together with such Subsidiary's Organizational Documents and current certificates of existence and good standing for the state in which it is organized, and such Guaranty must remain in full force and effect, and (B) would not at any time be in default of Sections 7.1 (f), (g), (h), (i) or (j), if said subsections were applicable to said owner.
(d) If the Borrower requests inclusion of assets in the Pool that do not meet the requirements of this Section 5.15, then such assets may only be included in the Pool upon the prior written approval of the Majority Lenders.
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