Unencumbered Asset Pool. §5.1 Addition of Eligible Real Estate Assets. (a) After the Closing Date, Parent Borrower shall have the right, subject to the consent of the Agent (which consent shall not be unreasonably withheld) and the satisfaction by Parent Borrower of the conditions set forth in this §5.1, to add Potential Unencumbered Assets to the Unencumbered Asset Pool. Parent Borrower from time to time after the Closing Date may also request that certain Real Estate of one or more Subsidiary Borrowers (collectively, the “Subsidiary Borrower Unencumbered Assets”) be included as an Eligible Real Estate Asset for the purpose of increasing the Unencumbered Asset Pool Availability. If Parent Borrower shall request that any Potential Unencumbered Assets or Subsidiary Borrower Unencumbered Asset be added to the 2014 Term Loan Unencumbered Asset Pool, it shall be required to add such Potential Unencumbered Asset or Subsidiary Borrower Unencumbered Asset, as applicable, to the Unencumbered Asset Pool hereunder. In the event Parent Borrower desires to add additional Potential Unencumbered Assets or Subsidiary Borrower Unencumbered Assets as aforesaid, Parent Borrower shall provide written notice to the Agent of such request (which the Agent shall promptly furnish to the Lenders), together with all documentation and other information reasonably required to permit the Agent to determine whether such Real Estate is Eligible Real Estate. Thereafter, the Agent shall have ten (10) Business Days from the date of the receipt of such documentation and other information to advise Parent Borrower whether the Agent consents to the acceptance of such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, no Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset shall be included in the Unencumbered Asset Pool unless and until the following conditions precedent shall have been satisfied: (i) such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset shall be Eligible Real Estate; (ii) the owner of any Subsidiary Borrower Unencumbered Asset (and any indirect owner of such Subsidiary Borrower) shall have executed a Joinder Agreement and satisfied the conditions of §5.3; (iii) Parent Borrower or the owner of the Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset, as applicable, shall have executed and delivered to the Agent all Eligible Real Estate Qualification Documents and a Compliance Certificate prepared using the financial statements of Parent Borrower most recently provided or required to be provided to the Agent under §6.4 or §7.4; and (iv) after giving effect to the inclusion of such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset, each of the representations and warranties made by or on behalf of the Borrowers or any of their respective Subsidiaries contained in this Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Agreement shall be true in all material respects both as of the date as of which it was made and shall also be true as of the time of the replacement or addition of Eligible Real Estate Assets, with the same effect as if made at and as of that time (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date), and no Default or Event of Default shall have occurred and be continuing, and the Agent shall have received a certificate of Parent Borrower to such effect. Notwithstanding the foregoing, in the event such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset does not qualify as Eligible Real Estate, so long as the conditions set forth in clauses (ii), (iii) and (iv) of this §5.1 have been satisfied, such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset shall be included in the Unencumbered Asset Pool and shall be deemed Eligible Real Estate so long as the Agent shall have received the prior written consent of each of the Lenders to the inclusion of such Real Estate as an Eligible Real Estate Asset. (b) Parent Borrower may, at its option, obtain preliminary approval of the Agent of a Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset by delivering to the Agent the following with respect to such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset: (i) a physical description of the Real Estate; (ii) current rent rolls, historic operating statements and operating and capital budgets (if available to Parent Borrower), and projected operating and near-term capital expenditure budgets for such Real Estate reasonably satisfactory to the Agent; (iii) a current environmental report, a current engineering report and similar information reasonably satisfactory to the Agent; and (iv) a certification to the knowledge of Parent Borrower that such Real Estate will satisfy (or is anticipated to satisfy upon the acceptance of such Real Estate in the Unencumbered Asset Pool) each of the other conditions to the acceptance of Real Estate in the Unencumbered Asset Pool. The Agent shall have ten (10) Business Days following receipt of all of the foregoing items to grant or deny preliminary approval for such proposed Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset. Agent shall notify Parent Borrower if and when the Agent has granted such preliminary approval. In the event that the Agent grants such preliminary approval, Parent Borrower may satisfy the remaining requirements to the acceptance of such Unencumbered Asset as provided in §5.1(a). Such Real Estate shall not be included in the calculation of the Unencumbered Asset Pool Availability until the requirements of §5.1(a) are satisfied.
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Sources: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Unencumbered Asset Pool. §5.1 Addition of Eligible Real Estate Assets.
(a) After the Closing Date, Parent Borrower shall have the right, subject to the consent of the Agent (which consent shall not be unreasonably withheld) and the satisfaction by Parent Borrower of the conditions set forth in this §5.1, to add Potential Unencumbered Assets to the Unencumbered Asset Pool. Parent Borrower from time to time after the Closing Date may also request that certain Real Estate of one or more Subsidiary Borrowers (collectively, the “Subsidiary Borrower Unencumbered Assets”) be included as an Eligible Real Estate Asset for the purpose of increasing the Unencumbered Asset Pool Availability. If Parent Borrower shall request that any Potential Unencumbered Assets or Subsidiary Borrower Unencumbered Asset be added to the 2014 Term Loan Unencumbered Asset Pool, it shall be required to add such Potential Unencumbered Asset or Subsidiary Borrower Unencumbered Asset, as applicable, to the Unencumbered Asset Pool hereunder. In the event Parent Borrower desires to add additional Potential Unencumbered Assets or Subsidiary Borrower Unencumbered Assets as aforesaid, Parent Borrower shall provide written notice to the Agent of such request (which the Agent shall promptly furnish to the Lenders), together with all documentation and other information reasonably required to permit the Agent to determine whether such Real Estate is Eligible Real Estate. Thereafter, the Agent shall have ten (10) Business Days from the date of the receipt of such documentation and other information to advise Parent Borrower whether the Agent consents to the acceptance of such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, no Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset shall be included in the Unencumbered Asset Pool unless and until the following conditions precedent shall have been satisfied:
(i) such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset shall be Eligible Real Estate;
(ii) the owner of any Subsidiary Borrower Unencumbered Asset (and any indirect owner of such Subsidiary Borrower) shall have executed a Joinder Agreement and satisfied the conditions of §5.3;
(iii) Parent Borrower or the owner of the Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset, as applicable, shall have executed and delivered to the Agent all Eligible Real Estate Qualification Documents and a Compliance Certificate prepared using the financial statements of Parent Borrower most recently provided or required to be provided to the Agent under §6.4 or §7.4; and
(iv) after giving effect to the inclusion of such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset, each of the representations and warranties made by or on behalf of the Borrowers or any of their respective Subsidiaries contained in this Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Agreement shall be true in all material respects both as of the date as of which it was made and shall also be true as of the time of the replacement or addition of Eligible Real Estate Assets, with the same effect as if made at and as of that time (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date), and no Default or Event of Default shall have occurred and be continuing, and the Agent shall have received a certificate of Parent Borrower to such effect. Notwithstanding the foregoing, in the event such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset does not qualify as Eligible Real Estate, so long as the conditions set forth in clauses (ii), (iii) and (iv) of this §5.1 have been satisfied, such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset shall be included in the Unencumbered Asset Pool and shall be deemed Eligible Real Estate so long as the Agent shall have received the prior written consent of each of the Lenders to the inclusion of such Real Estate as an Eligible Real Estate Asset.
(b) Parent Borrower may, at its option, obtain preliminary approval of the Agent of a Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset by delivering to the Agent the following with respect to such Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset:
(i) a physical description of the Real Estate;
(ii) current rent rolls, historic operating statements and operating and capital budgets (if available to Parent Borrower), and projected operating and near-term capital expenditure budgets for such Real Estate reasonably satisfactory to the Agent;
(iii) a current environmental report, a current engineering report and similar information reasonably satisfactory to the Agent; and
(iv) a certification to the knowledge of Parent Borrower that such Real Estate will satisfy (or is anticipated to satisfy upon the acceptance of such Real Estate in the Unencumbered Asset Pool) each of the other conditions to the acceptance of Real Estate in the Unencumbered Asset Pool. The Agent shall have ten (10) Business Days following receipt of all of the foregoing items to grant or deny preliminary approval for such proposed Subsidiary Borrower Unencumbered Asset or Potential Unencumbered Asset. Agent shall notify Parent Borrower if and when the Agent has granted such preliminary approval. In the event that the Agent grants such preliminary approval, Parent Borrower may satisfy the remaining requirements to the acceptance of such Unencumbered Asset as provided in §5.1(a). Such Real Estate shall not be included in the calculation of the Unencumbered Asset Pool Availability until the requirements of §5.1(a) are satisfied.
§5.2 Release of Eligible Real Estate Assets. Provided no Default or Event of Default shall have occurred hereunder and be continuing (or would exist immediately after giving effect to the transactions contemplated by this §5.2), and if the conditions set forth in this Section 5.2 are not met, upon reasonable approval by the Required Lenders, the Agent shall release an Eligible Real Estate Asset from the Unencumbered Asset Pool upon the request of Parent Borrower subject to and upon the following terms and conditions:
(a) Parent Borrower shall deliver to the Agent written notice of its desire to obtain such release no later than ten (10) days prior to the date on which such release is to be effected;
(b) Parent Borrower shall submit to the Agent with such request a Compliance Certificate prepared using the financial statements of Parent Borrower most recently provided or required to be provided to the Agent under §6.4 or §7.4 adjusted in the best good faith estimate of Parent Borrower to give effect to the proposed release and demonstrating that no Default or Event of Default with respect to the covenants referred to therein shall exist after giving effect to such release;
(c) Parent Borrower shall pay all reasonable costs and expenses of the Agent, if any, in connection with such release, including without limitation, reasonable attorney’s fees;
(d) Parent Borrower shall pay to the Agent for the account of the Lenders a release price, which payment shall be applied to reduce the outstanding principal balance of the Loans as provided in §3.4, in an amount equal to the amount necessary, if any, to reduce the outstanding principal balance of the Loans so that no violation of the covenant set forth in §9.1 shall occur; and
(e) without limiting or affecting any other provision hereof, any release of an Eligible Real Estate Asset will not cause the Borrowers to be in violation of the covenants set forth in §9.8.
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