Property Pool. (a) The Borrower (or a Subsidiary of EDR if the conditions in Subsection (c) below are satisfied) will at all times own (in fee simple title or through an Eligible Ground Lease) a pool (the “Pool”) of Real Property assets that are subject to a Deed of Trust and Environmental Indemnity and are Collateral and that are not subject to a Lien in any manner, other than Permitted Encumbrances, with an aggregate Pool Value equal to at least $50,000,000, with the following characteristics: (i) completed income-producing, first-class student housing communities located in states in the United States of America other than Alaska and Hawaii; (ii) managed by the Borrower, its Subsidiary or the Management Company; (iii) a final certificate of occupancy, or the local equivalent has been issued by the appropriate Governmental Authority for all of the improvements on the Real Property; (iv) no material deferred maintenance and no capital improvements are required to continue operating as a first-class student housing community, as determined by an architectural or engineering report approved by the Administrative Agent; (1) the Administrative Agent must have received Phase I environmental reports from third-party independent consultants for each property in, or to be added to, the Pool that do not disclose any adverse material environmental conditions, (2) the owner of the subject property must be able to make the representations and warranties in Sections 3.05 and 3.07 as to each property in, or to be added to, the Pool, (3) the owner of the subject property must have provided a current Survey, Title Insurance Policy, Financing Statement, flood zone certification, and all other documents required for Collateral as the Administrative Agent may require (which will include, at a minimum, proof of casualty and liability insurance complying with this Agreement, architect’s or engineer’s inspection report, central and local Uniform Commercial Code searches, Appraisal, current rent roll, purchase agreement, recent photographs, last three years operating statements, a pro forma operating statement, and a site visit by the Administrative Agent) and in form and substance satisfactory to the Administrative Agent, and (4) if the property owner is to become a “Borrower” under this Agreement, then it must have joined in, and assumed all obligations of a “Borrower” under, this Agreement and the other Loan Documents, a Subsidiary owner must have complied with Subsection (c) below, and in each case provided all of the items required by Article IV (to the extent applicable), all in form and substance satisfactory to the Administrative Agent; (vi) the property has an average occupancy ratio for the four (4) prior quarters of at least eighty percent (80%) (exclusive of the property owned by EDR Tallahassee, LP through the June 30, 2010 test); and (vii) the property is otherwise approved by the Administrative Agent and the Required Lenders, such approval not to be unreasonably withheld. As of the Effective Date the Real Property assets included in the Pool are listed on Schedule 5.12 attached hereto. (b) Notwithstanding the foregoing, (i) there shall at all times be at least four (4) separate Real Property assets in the Pool, and (ii) no single property in the Pool shall have a Pool Value equal to or greater than 40% of the aggregate Pool Value. (c) If any Real Property to be included in the Pool is owned by a Subsidiary of EDR that is not a Borrower, then the Real Property may be included in the Pool only if the owner of such Real Property (i) is a wholly owned Subsidiary of EDR, and (ii) executes a Guaranty and delivers it to the Administrative Agent. (d) All of the Real Property assets in the Pool must be owned by EDR or a wholly owned Subsidiary of EDR that is either a Borrower or a Guarantor. (e) If the Borrower requests inclusion of assets in the Pool that do not meet the requirements of this Section, then such assets may only be included in the Pool upon the prior written approval of the Administrative Agent and the Required Lenders.
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Property Pool. (a) The Borrower (or a Subsidiary of EDR if the conditions in Subsection (c) below are satisfied) will at all times own (in fee simple title or through an Eligible Ground Lease) Lease a pool (the “"Pool”") of Real Property assets that are subject to a Deed of Trust and Environmental Indemnity and are Collateral and that are not subject to a Lien in any manner, other than Permitted Encumbrances, with an aggregate Pool Value equal to at least $50,000,000, with the following characteristics:
(i) completed income-producing, first-class student housing communities located in states in the United States of America other than Alaska and Hawaii;
(ii) managed by the BorrowerBorrower or its Subsidiary; provided however, its Subsidiary or that for up to ninety (90) days after the date of this Agreement JPI Management CompanyServices, L.P. may manage the property that it sold to Borrower subject to a management agreement in form and substance satisfactory to the Administrative Agent;
(iii) a final certificate of occupancy, or the local equivalent has been issued by the appropriate Governmental Authority for all of the improvements on the Real Property;
(iv) no material deferred maintenance and no capital improvements are required to continue operating as a first-class student housing community, as determined by an architectural or engineering report approved by the Administrative Agent;
(1) the Administrative Agent must have received Phase I environmental reports from third-party independent consultants for each property in, or to be added to, the Pool that do not disclose any adverse material environmental conditions, (2) the owner of the subject property Borrower must be able to make the representations and warranties in Sections 3.05 and 3.07 as to each property in, or to be added to, the Pool, (3) the owner of the subject property Borrower must have provided a current Survey, Title Insurance Policy, Financing Statement, flood zone certification, Statement and all other documents required for Collateral as the Administrative Agent may require (which will include, at a minimum, proof of casualty and liability insurance complying with this Agreement, architect’s 's or engineer’s 's inspection report, central and local Uniform Commercial Code searches, Appraisal, current rent roll, purchase agreement, recent photographs, last three years operating statements, a pro forma operating statement, and a site visit by the Administrative Agent) and in form and substance satisfactory to the Administrative Agent, and (4) if the property owner is to become a “Borrower” under this Agreement, then it Borrower must have joined in, and assumed all obligations of a “"Borrower” " under, this Agreement and the other Loan Documents, a Subsidiary owner must have complied with Subsection (c) below, and in each case provided all of the items required by Article IV (to the extent applicable), all in form and substance satisfactory to the Administrative Agent;
(vi) the property has an average occupancy ratio for the four (4) prior quarters of at least eighty percent (80%) (exclusive of the property owned by EDR Tallahassee, LP through the June 30, 2010 test); and
(viivi) the property is otherwise approved by the Administrative Agent and the Required Lenders, such approval not to be unreasonably withheld. As of the Effective Date the Real Property assets included in the Pool are listed on Schedule 5.12 attached hereto.
(b) Notwithstanding the foregoing, (i) there shall at all times be at least four (4) separate Real Property assets in the Pool, and (ii) no single property in the Pool shall have a Pool Value equal to or greater than 4030% of the aggregate Pool Value, except for the Jefferson Pointe project in Tallahassee, Florida.
(c) If any Real Property to be included in the Pool is owned by a Subsidiary of EDR that is not a Borrower, then the Real Property may be included in the Pool only if the owner of such Real Property (i) is a wholly owned Subsidiary of EDR, and (ii) executes a Guaranty and delivers it to the Administrative Agent.
(d) All of the Real Property assets in the Pool must be owned by EDR or a wholly owned Subsidiary of EDR that is either a Borrower or a Guarantor.
(e) If the Borrower requests inclusion of assets in the Pool that do not meet the requirements of this Section, then such assets may only be included in the Pool upon the prior written approval of the Administrative Agent and the Required Lenders.
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