Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld): (a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property. (b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”). (c) The Unencumbered Property is served by all utilities required for the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service. (d) Except with respect to Assets Under Development, all roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public. (e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems. (f) Borrower is not aware of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof. (g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Property. (h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress. (i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided. (j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement).
Appears in 5 contracts
Sources: Credit Agreement (BLACK CREEK INDUSTRIAL REIT IV Inc.), Credit Agreement (Industrial Property Trust Inc.), Credit Agreement (Industrial Property Trust Inc.)
Unencumbered Properties. Except as set forth in Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof 6.23 or as set forth in Section 2.23 and upon the inclusion written engineer reports provided to Agent on or removal of a Property as an Unencumbered Property for purposes before the date hereof, all of the Borrowing Base CovenantsUnencumbered Properties, including the entity that owns each Unencumbered Property. With respect and all major building systems located thereon, are structurally sound, in good condition and working order and free from material defects, subject to each Property identified from time to time as an Unencumbered Propertyordinary wear and tear, Borrower hereby represents except for such portion of such Real Estate which is not occupied by any tenant and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall may not be unreasonably withheld):
(a) No portion in final working order pending final build-out of any improvement on such space except where such defects have not had and could not reasonably be expected to have a Material Adverse Effect. Each of the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973Properties, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are operation thereof, is in material compliance with all applicable zoning federal and state law and governmental regulations and any local ordinances, orders or regulations, including without limitation, laws, regulations and ordinances (without reliance upon adjoining or other properties)relating to zoning, building codes, land use subdivision, fire protection, health, safety, handicapped access, historic preservation and protection, wetlands, tidelands, and Environmental Laws (“Applicable Laws”).
(c) The Unencumbered Property is served by all except in cases that would not reasonably cause a Material Adverse Effect. All water, sewer, electric, gas, telephone and other utilities required necessary for the current use thereof. All utility service is provided by and operation of the Collateral Property are installed to the property lines of the Collateral Property through dedicated public utilities and the Unencumbered Property has accepted rights of way or is equipped to accept such utility service.
(d) Except through perpetual private easements with respect to Assets Under Developmentwhich the applicable Mortgage creates a valid and enforceable first lien subject to Permitted Liens and, all roads and streets necessary for service except in the case of and access drainage facilities, are connected to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather Building located thereon with valid permits and are physically and legally open for use by adequate to service the public.
(e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, Building in all material respects, all requirements and regulations ofcompliance with applicable law, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware except where the failure of any of the foregoing could not reasonably be expected to have a Material Adverse Effect. There are no material latent unpaid or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value outstanding real estate or other taxes or assessments on or against any of the Unencumbered Property Properties which are payable by Borrower (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire except only real estate or other casualty (other than any casualty loss taxes or assessments, that are not yet delinquent or are being handled in accordance with the Loan Documentsprotested as permitted by this Agreement). There is Except as otherwise disclosed to Agent in writing, there are no pending orpending, or to the actual knowledge of BorrowerBorrower or Subsidiary Guarantors threatened or contemplated, threatened condemnation eminent domain proceedings affecting against any of the Unencumbered PropertyProperties. Except as otherwise disclosed to Agent in writing, or any material part thereof.
(g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on none of the Unencumbered Property are Properties is now damaged as a result of any fire, explosion, accident, flood or other casualty. Except as otherwise disclosed to Agent in a condition and repair adequate for writing, none of the Borrower or Subsidiary Guarantors have received any outstanding notice from any insurer or its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or agent requiring performance of any work with respect to any Unencumbered Property will be upon completion of such Unencumbered Property.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use Properties or occupancy canceling or threatening to cancel any policy of insurance, and each of the Unencumbered PropertyProperties complies with the material requirements of all of the Borrower’s and Subsidiary Guarantors’ insurance carriers, except where any of the foregoing would not reasonably be expected to have a Material Adverse Effect. Except as otherwise disclosed to Agent, the Borrower and the Subsidiary Guarantors have no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy Management Agreements for any of the Unencumbered Property Properties. To the best knowledge of the Borrower and the Subsidiary Guarantors, there are no improvements on adjoining properties encroach upon the material claims or any bases for material claims in respect of any Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments its operation by any party to any service agreement or Management Agreement that do not materially adversely affect the use would have a Material Adverse Effect. No person or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available entity has any right or option to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the acquire any Unencumbered Property or are public propertyany Building thereon or any portion thereof or interest therein, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits except for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except certain tenants pursuant to the extent such items terms of their Leases with Subsidiary Guarantors. The Unencumbered Properties are being contested in good faith insured with financially sound and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach reputable insurance companies not Affiliates of any of the representations Credit Party, in such amounts, with such deductibles and warranties contained in this Section 3.13 covering such risks (including risks with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long environmental claims) as such breach continues (unless otherwise approved are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement)applicable Credit Party or Subsidiary operates.
Appears in 5 contracts
Sources: Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.), Credit Agreement (Plymouth Industrial REIT, Inc.), Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.)
Unencumbered Properties. (a) Schedule 3.13 hereto 5.21(a) contains a complete and accurate description of the Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder Assets as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(dExecution Date.
(b) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect to each Property Project identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheldAsset on Schedule 5.21(a):
(a1) No no portion of any improvement on the such Unencumbered Property Asset is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, 1973 or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, Issuer has obtained and will maintain the insurance coverage for (including flood and other water damage insurance) prescribed in the amount of the replacement cost of the improvements at the Unencumbered Property.Section 9.2;
(b2) To to the BorrowerIssuer’s knowledge, the such Unencumbered Property Asset and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws Laws, and other similar laws (herein, “Applicable Laws”).;
(c3) The such Unencumbered Property Asset is served by all utilities required for the current or contemplated use thereof. All utility service is provided by public utilities and the such Unencumbered Property Asset has accepted or is equipped to accept such utility service.;
(d4) Except with respect to Assets Under Development, all public roads and streets necessary for service of and access to the such Unencumbered Property Asset for the current or contemplated use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.;
(e5) The such Unencumbered Property Asset is served by public water and sewer systems or, if the such Unencumbered Property Asset is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies comply in all material respects with, all Applicable Laws with respect to such alternate systems.;
(f6) Borrower the Issuer is not aware of any material latent or patent structural defect in the or other significant deficiency of such Unencumbered PropertyAsset. The Such Unencumbered Property Asset is free of damage and waste that would materially and adversely affect the value of the such Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) Asset and is in adequate repair for its intended usegood repair, and there is no deferred maintenance other than ordinary wear and tear. The Such Unencumbered Property Asset is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents)casualty. There is no pending or, to the actual knowledge of Borrowerthe Issuer, threatened condemnation proceedings affecting the such Unencumbered PropertyAsset, or any material part thereof.;
(g7) To Borrowerto the Issuer’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the such Unencumbered Property Asset are in a good and safe condition and repair adequate for its intended use and, to Borrowerthe Issuer’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of systems;
(8) all improvements on such Unencumbered Property.
(h) All improvements on the Unencumbered Property Asset lie within the boundaries and building restrictions of the legal description of record of the such Unencumbered Property Asset, no such improvements encroach upon easements benefiting such Unencumbered Asset other than encroachments that do not materially adversely affect the use or occupancy of the such Unencumbered Property, Asset and no such improvements on adjoining properties encroach upon such Unencumbered Asset or easements benefiting the such Unencumbered Property Asset other than encroachments that do not materially adversely affect the use or occupancy of the such Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered PropertyAsset. All amenities, access routes or other items that materially benefit the such Unencumbered Property Asset are available to Borrower or the applicable Subsidiary under direct control of the BorrowerIssuer, constitute permanent easements that benefit all or part of the such Unencumbered Property Asset or are public property, and the such Unencumbered PropertyAsset, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any the necessary permits for ingress and egress.;
(i9) There there are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the such Unencumbered Property Asset except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.; and
(j10) Each such Unencumbered Property Asset satisfies each of the requirements for an Unencumbered Asset as set forth in the definition of “Unencumbered Property”thereof. A breach of any of the representations and warranties contained in this Section 3.13 5.21(b) with respect to a Property Project shall disqualify such Property Project from being an Unencumbered Property Asset for so long as such breach continues (unless otherwise approved in writing by the Required LendersHolders) but shall not constitute a Default or an Event of Default (unless the elimination of such Property as an Unencumbered Property Asset results in a Default or an Event of Default under one of the other provisions of this Agreement).
Appears in 2 contracts
Sources: Note and Guaranty Agreement (First Industrial Lp), Note and Guaranty Agreement (First Industrial Lp)
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”).
(c) The Except to the extent not completed on Assets Under Development and Land, the Unencumbered Property is served by all utilities required for the current use thereof. All , all utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to the extent not completed on Assets Under DevelopmentDevelopment and Land, all roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Except to the extent not completed on Assets Under Development and Land, the Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof.
(g) To Except to the extent not completed on Assets Under Development and Land, to Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Property.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement).
Appears in 2 contracts
Sources: Credit Agreement (BLACK CREEK INDUSTRIAL REIT IV Inc.), Credit Agreement (BLACK CREEK INDUSTRIAL REIT IV Inc.)
Unencumbered Properties. (a) Schedule 3.13 hereto 5.21(a) contains a complete and accurate description of the Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder Assets as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(dExecution Date.
(b) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect to each Property Project identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheldAsset on Schedule 5.21(a):
(a1) No no portion of any improvement on the such Unencumbered Property Asset is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, 1973 or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, Issuer has obtained and will maintain the insurance coverage for (including flood and other water damage insurance) prescribed in the amount of the replacement cost of the improvements at the Unencumbered Property.Section 9.2;
(b2) To to the BorrowerIssuer’s knowledge, the such Unencumbered Property Asset and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws Laws, and other similar laws (herein, “Applicable Laws”).;
(c3) The such Unencumbered Property Asset is served by all utilities required for the current or contemplated use thereof. All utility service is provided by public utilities and the such Unencumbered Property Asset has accepted or is equipped to accept such utility service.;
(d4) Except with respect to Assets Under Development, all public roads and streets necessary for service of and access to the such Unencumbered Property Asset for the current or contemplated use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.;
(e5) The such Unencumbered Property Asset is served by public water and sewer systems or, if the such Unencumbered Property Asset is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies comply in all material respects with, all Applicable Laws with respect to such alternate systems.;
(f6) Borrower the Issuer is not aware of any material latent or patent structural defect in the or other significant deficiency of such Unencumbered PropertyAsset. The Such Unencumbered Property Asset is free of damage and waste that would materially and adversely affect the value of the such Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) Asset and is in adequate repair for its intended usegood repair, and there is no deferred maintenance other than ordinary wear and tear. The Such Unencumbered Property Asset is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents)casualty. There is no pending or, to the actual knowledge of Borrowerthe Issuer, threatened condemnation proceedings affecting the such Unencumbered PropertyAsset, or any material part thereof.;
(g7) To Borrowerto the Issuer’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the such Unencumbered Property Asset are in a good and safe condition and repair adequate for its intended use and, to Borrowerthe Issuer’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of systems;
(8) all improvements on such Unencumbered Property.
(h) All improvements on the Unencumbered Property Asset lie within the boundaries and building restrictions of the legal description of record of the such Unencumbered Property Asset, no such improvements encroach upon easements benefiting such Unencumbered Asset other than encroachments that do not materially adversely affect the use or occupancy of the such Unencumbered Property, Asset and no such improvements on adjoining properties encroach upon such Unencumbered Asset or easements benefiting the such Unencumbered Property Asset other than encroachments that do not materially adversely affect the use or occupancy of the such Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered PropertyAsset. All amenities, access routes or other items that materially benefit the such Unencumbered Property Asset are available to Borrower or the applicable Subsidiary under direct control of the BorrowerIssuer, constitute permanent easements that benefit all or part of the such Unencumbered Property Asset or are public property, and the such Unencumbered PropertyAsset, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any the necessary permits for ingress and egress.;
(i9) There there are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the such Unencumbered Property Asset except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.; and
(j10) Each such Unencumbered Property Asset satisfies each of the requirements for an Unencumbered Asset as set forth in the definition of “Unencumbered Property”thereof. A breach of any of the representations and warranties contained in this Section 3.13 5.21(b) with respect to a Property Project shall disqualify such Property Project from being an Unencumbered Property Asset for so long as such breach continues (unless otherwise approved by the Required LendersHolders) but shall not constitute a Default or an Event of Default (unless the elimination of such Property as an Unencumbered Property Asset results in a Default or an Event of Default under one of the other provisions of this Agreement).
Appears in 2 contracts
Sources: Note and Guaranty Agreement (First Industrial Lp), Note and Guaranty Agreement (First Industrial Realty Trust Inc)
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as As of the Effective Date Agreement Execution Date, Schedule 7 is a correct and as supplemented from time to time in connection with the delivery complete list of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base CovenantsProperties, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):all applicable ownership information and:
(a) No portion Each of any improvement on the Unencumbered Property Properties is not located in an area that has been identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to 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, law or, if any portion of the industrial buildings on such Properties are located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, Subsidiary Guarantor has obtained and will maintain through the Term Facility Termination Date the insurance coverage for flood and other water damage prescribed in the amount of the replacement cost of the improvements at the Unencumbered PropertySection 5.17 hereof.
(b) To the Borrower’s knowledge, each of the Unencumbered Property Properties and the present use and occupancy thereof are in material compliance with all applicable material 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 environmental assessments delivered to the Administrative Agent pursuant to this Agreement) and other similar laws (“Applicable Laws”).
(c) The Each of the Unencumbered Property Properties is served by all utilities required for the current or contemplated use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under DevelopmentTo Borrower’s knowledge, all public roads and streets necessary for service of and access to each of the Unencumbered Property Properties for the current or contemplated use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public, or appropriate insured private easements are in place.
(e) The Unencumbered Property is served Except as disclosed in any property condition reports delivered by public water and sewer systems orthe Administrative Agent, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect in or other significant deficiency of the Unencumbered PropertyProperties. The Each of the Unencumbered Property Properties is free of damage and waste that would materially and adversely affect the value of such Unencumbered Property, is in good condition and repair and to Borrower’s knowledge there is no deferred maintenance other than ordinary wear and tear. Each of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property Properties is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereofcasualty.
(gf) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property Properties are in a good and safe condition and repair adequate for its intended use and, and to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Propertysystems.
(hg) All To Borrower’s knowledge, all improvements on the each Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of such Unencumbered Property, no improvements encroach upon easements benefiting the Unencumbered Property Properties other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, Properties and no such improvements on adjoining properties encroach upon the Unencumbered Properties or upon easements benefiting the Unencumbered Property Properties other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property Properties.
(h) To Borrower’s knowledge, all Leases are in full force and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do effect. Borrower is not materially adversely affect the use or occupancy in default under any Lease and Borrower has disclosed to Lenders in writing any material default, of which Borrower has knowledge, under any Lease which demises any material portion of the related Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property Properties except to the extent such items are being contested in good faith by appropriate proceedings and as to which adequate reserves have been providedprovided and there is no risk of loss, forfeiture, or sale of any interest in the Unencumbered Properties during such proceedings. Each of the Unencumbered Properties is taxed separately without regard to any other property not included in the Unencumbered Properties.
(j) Each No condemnation proceeding or eminent domain action is pending or threatened against any of the Unencumbered Properties which would impair the use, value, sale or occupancy of such Unencumbered Property satisfies each (or any portion thereof) in any material manner.
(k) Each of the requirements Unencumbered Properties is not, nor is any direct or indirect interest of Borrower or any Subsidiary Guarantor in any Unencumbered Property or in the ownership interest with respect to any owner of an Unencumbered Property, subject to any Lien other than Permitted Liens set forth in clauses (i) through (iv) of Section 6.14 or to any Negative Pledge (other than the definition Liens and Negative Pledges created pursuant to this Agreement to secure the obligations of “Unencumbered Property”. A breach of any of Borrower and the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this AgreementSubsidiary Guarantors).
Appears in 2 contracts
Sources: Senior Credit Agreement (Terreno Realty Corp), Senior Credit Agreement (Terreno Realty Corp)
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as As of the Effective Date Agreement Execution Date, Schedule 7 is a correct and as supplemented from time to time in connection with the delivery complete list of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base CovenantsProperties, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):all applicable ownership information and:
(a) No portion Each of any improvement on the Unencumbered Property Properties is not located in an area that has been identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to 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, law or, if any portion of the industrial buildings on such Properties are located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, Subsidiary Guarantor has obtained and will maintain through the Term B Facility Termination Date the insurance coverage for flood and other water damage prescribed in the amount of the replacement cost of the improvements at the Unencumbered PropertySection 5.17 hereof.
(b) To the Borrower’s knowledge, each of the Unencumbered Property Properties and the present use and occupancy thereof are in material compliance with all applicable material 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 environmental assessments delivered to the Administrative Agent pursuant to this Agreement) and other similar laws (“Applicable Laws”).
(c) The Each of the Unencumbered Property Properties is served by all utilities required for the current or contemplated use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under DevelopmentTo Borrower’s knowledge, all public roads and streets necessary for service of and access to each of the Unencumbered Property Properties for the current or contemplated use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public, or appropriate insured private easements are in place.
(e) The Unencumbered Property is served Except as disclosed in any property condition reports delivered by public water and sewer systems orthe Administrative Agent, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower ▇▇▇▇▇▇▇▇ is not aware of any material latent or patent structural defect in or other significant deficiency of the Unencumbered PropertyProperties. The Each of the Unencumbered Property Properties is free of damage and waste that would materially and adversely affect the value of such Unencumbered Property, is in good condition and repair and to Borrower’s knowledge there is no deferred maintenance other than ordinary wear and tear. Each of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property Properties is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereofcasualty.
(gf) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property Properties are in a good and safe condition and repair adequate for its intended use and, and to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Propertysystems.
(hg) All To Borrower’s knowledge, all improvements on the each Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of such Unencumbered Property, no improvements encroach upon easements benefiting the Unencumbered Property Properties other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, Properties and no such improvements on adjoining properties encroach upon the Unencumbered Properties or upon easements benefiting the Unencumbered Property Properties other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property Properties.
(h) To Borrower’s knowledge, all Leases are in full force and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do effect. Borrower is not materially adversely affect the use or occupancy in default under any Lease and Borrower has disclosed to Lenders in writing any material default, of which Borrower has knowledge, under any Lease which demises any material portion of the related Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property Properties except to the extent such items are being contested in good faith by appropriate proceedings and as to which adequate reserves have been providedprovided and there is no risk of loss, forfeiture, or sale of any interest in the Unencumbered Properties during such proceedings. Each of the Unencumbered Properties is taxed separately without regard to any other property not included in the Unencumbered Properties.
(j) Each No condemnation proceeding or eminent domain action is pending or threatened against any of the Unencumbered Properties which would impair the use, value, sale or occupancy of such Unencumbered Property satisfies each (or any portion thereof) in any material manner.
(k) Each of the requirements Unencumbered Properties is not, nor is any direct or indirect interest of Borrower or any Subsidiary Guarantor in any Unencumbered Property or in the ownership interest with respect to any owner of an Unencumbered Property, subject to any Lien other than Permitted Liens set forth in clauses (i) through (iv) of Section 6.14 or to any Negative Pledge (other than the definition Liens and Negative Pledges created pursuant to this Agreement to secure the obligations of “Unencumbered Property”. A breach of any of Borrower and the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this AgreementSubsidiary Guarantors).
Appears in 2 contracts
Sources: Senior Credit Agreement (Terreno Realty Corp), Senior Credit Agreement (Terreno Realty Corp)
Unencumbered Properties. Schedule 3.13 5.19 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Closing Date and as supplemented from time to time in connection with the delivery of the certificate required under a Compliance Certificate pursuant to Section 5.01(d6.01(c) hereof or as set forth in Section 2.23 2.13 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenantsfinancial covenants contained in Section 7.09, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”).
(c) The Unencumbered Property is served by all utilities required for the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under Development, all public roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof.
(g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Propertysystems.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 5.19 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement).
Appears in 2 contracts
Sources: Term Loan Agreement (Industrial Income Trust Inc.), Term Loan Agreement (Industrial Income Trust Inc.)
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified shall be subject to or encumbered by any Indebtedness, or by any other Material Agreement that by its terms precludes the Secretary grant of Housing and Urban Development the Collateral or any successor thereto as an area having special flood hazards pursuant the exercise by or on behalf of the Secured Creditors of remedies with respect to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered PropertyCollateral.
(b) To A Property may cease to qualify as an Unencumbered Real Property, but may subsequently regain its status as a Unencumbered Real Property as provided in clause (c) below; provided, however, if an Event of Default has occurred as a result of the Borrower’s knowledgefailure to satisfy the Required Minimum Unencumbered Asset Ratio, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”)such Event of Default shall not be cured as a result of such re-qualification.
(c) Borrower may include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Unencumbered Real Properties but ceased to qualify as such) by sending (i) a written certification that such Property then satisfies the criteria for a Unencumbered Real Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, and (ii) if requested by Administrative Agent, reasonable supporting documentation with respect to each of the elements of such certification or request. The Unencumbered Property is served by all utilities required for Administrative Agent will make such request and materials available to the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility serviceLenders.
(d) Except with respect to Assets Under Development, all roads and streets necessary for service Borrower shall promptly after any Responsible Officer of and access to the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting an Unencumbered Real Property for or (ii) the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware occurrence of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents event or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The affecting an Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Real Property, or (iii) any material part thereof.
bankruptcy or insolvency proceeding involving a Tenant at an Unencumbered Real Property, or (giv) To Borrower’s knowledgeany other event or occurrence which would cause an Unencumbered Real Property to cease to qualify as such. In such event, all liquid and solid waste disposal, septic and sewer systems located on the affected Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Real Property will be upon completion of such Unencumbered Property.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions immediately, as of the legal description occurrence, cease to qualify as an Unencumbered Real Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of record less than 25% of the Unencumbered Property other than encroachments rentable square footage and provided that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered PropertyTenant, by virtue way of such easements business interruption insurance proceeds or otherwise, is contiguous continuing to a physically open, dedicated all weather public street, pay rent and other charges under its lease and the applicable Property Owner has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except given reasonable security to the extent Lenders to insure that such items are being contested repair, restoration or remediation will be promptly and diligently resolved in a good faith and as to which adequate reserves have been provided.
▇▇▇▇▇▇▇-like manner within sixty (j60) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify days, then such Property from being will not cease to qualify as an Unencumbered Real Property for so long as such breach continues conditions remain satisfied and provided that such issues are finally repaired or resolved within sixty (unless otherwise approved 60) days.
(e) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent (i) of any pay-down, pay off or other reduction in the outstanding amount of any Qualified Tenant Note, in which event the amount of the affected Qualified Tenant Note will immediately, as of the occurrence, be reduced in calculating the Total Value; (ii) (x) of any event or occurrence which would cause the representations in Section 6.9.6 with respect to a Qualified Tenant Note to be inaccurate in any respect, or (y) if any Qualified Tenant Note is not held and/or economic and beneficial interest in such Qualified Tenant Note is not owned by the Required Lenders) but shall not constitute a Default (unless holder by such Qualified Tenant Note as of the elimination date hereof, in which event, the affected Qualified Tenant Note will immediately, as of such Property the occurrence, cease to qualify as an Unencumbered Property results in a Default under one hereunder.
(f) So long as the Loan is outstanding, Borrower shall, and shall cause its applicable Affiliate to, either extend the term of the other provisions Swift Spinning Property Ground Lease or exercise its purchase option for a $100 thereunder. In the event Borrower fails to comply with this Section 7.1.16(f), the Swift Spinning Property Ground Lease will immediately, as of this Agreement)the occurrence, cease to qualify as a Qualified Ground Lease and the applicable Property shall cease to qualify as an Unencumbered Real Property hereunder.
Appears in 1 contract
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as As of the Effective Date Agreement Execution Date, Schedule 7 is a correct and as supplemented from time to time in connection with the delivery complete list of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base CovenantsProperties, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):all applicable ownership information and:
(a) No portion Each of any improvement on the Unencumbered Property Properties is not located in an area that has been identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to 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, law or, if any portion of the industrial buildings on such Properties are located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, Subsidiary Guarantor has obtained and will maintain through the Term B Facility Termination Date the insurance coverage for flood and other water damage prescribed in the amount of the replacement cost of the improvements at the Unencumbered PropertySection 5.17 hereof.
(b) To the Borrower’s knowledge, each of the Unencumbered Property Properties and the present use and occupancy thereof are in material compliance with all applicable material 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 environmental assessments delivered to the Administrative Agent pursuant to this Agreement) and other similar laws (“Applicable Laws”).
(c) The Each of the Unencumbered Property Properties is served by all utilities required for the current or contemplated use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under DevelopmentTo Borrower’s knowledge, all public roads and streets necessary for service of and access to each of the Unencumbered Property Properties for the current or contemplated use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public, or appropriate insured private easements are in place.
(e) The Unencumbered Property is served Except as disclosed in any property condition reports delivered by public water and sewer systems orthe Administrative Agent, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect in or other significant deficiency of the Unencumbered PropertyProperties. The Each of the Unencumbered Property Properties is free of damage and waste that would materially and adversely affect the value of such Unencumbered Property, is in good condition and repair and to Borrower’s knowledge there is no deferred maintenance other than ordinary wear and tear. Each of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property Properties is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereofcasualty.
(gf) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property Properties are in a good and safe condition and repair adequate for its intended use and, and to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Propertysystems.
(hg) All To Borrower’s knowledge, all improvements on the each Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of such Unencumbered Property, no improvements encroach upon easements benefiting the Unencumbered Property Properties other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, Properties and no such improvements on adjoining properties encroach upon the Unencumbered Properties or upon easements benefiting the Unencumbered Property Properties other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property Properties.
(h) To Borrower’s knowledge, all Leases are in full force and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do effect. Borrower is not materially adversely affect the use or occupancy in default under any Lease and Borrower has disclosed to Lenders in writing any material default, of which Borrower has knowledge, under any Lease which demises any material portion of the related Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property Properties except to the extent such items are being contested in good faith by appropriate proceedings and as to which adequate reserves have been providedprovided and there is no risk of loss, forfeiture, or sale of any interest in the Unencumbered Properties during such proceedings. Each of the Unencumbered Properties is taxed separately without regard to any other property not included in the Unencumbered Properties.
(j) Each No condemnation proceeding or eminent domain action is pending or threatened against any of the Unencumbered Properties which would impair the use, value, sale or occupancy of such Unencumbered Property satisfies each (or any portion thereof) in any material manner.
(k) Each of the requirements Unencumbered Properties is not, nor is any direct or indirect interest of Borrower or any Subsidiary Guarantor in any Unencumbered Property or in the ownership interest with respect to any owner of an Unencumbered Property, subject to any Lien other than Permitted Liens set forth in clauses (i) through (iv) of Section 6.14 or to any Negative Pledge (other than the definition Liens and Negative Pledges created pursuant to this Agreement to secure the obligations of “Unencumbered Property”. A breach of any of Borrower and the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this AgreementSubsidiary Guarantors).
Appears in 1 contract
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description list of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof a Borrowing Base Certificate or as set forth in Section Sections 2.23 and 9.21 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base CovenantsProperty, including the name of the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants in all material respects as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheldwithheld conditioned or delayed):
(a) No To the Borrower’s knowledge, no portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property..
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”), subject to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(c) The Except to the extent not completed on Assets Under Development and Land, the Unencumbered Property is served by all utilities required for the current use thereof. All , all utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service, subject to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(d) Except with respect to the extent not completed on Assets Under DevelopmentDevelopment and Land, all roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public, subject to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(e) The Except to the extent not completed on Assets Under Development and Land, the Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems, subject to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(f) Borrower is not aware of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof, in each case that would materially detract from the value of such Unencumbered Property, materially impair the use or operation thereof, or materially interfere with the ordinary conduct of business of the Borrower or any Subsidiary.
(g) To Except to the extent not completed on Assets Under Development and Land, to Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Property, subject, in each case, to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies in all material respects each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default or an Event of Default (unless the elimination of such Property as an Unencumbered Property results in a Default or Event of Default under one of the other provisions of this Agreement).
Appears in 1 contract
Unencumbered Properties. Schedule 3.13 hereto contains (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 shall be owned 100% in fee simple, or leased pursuant to a complete 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 and accurate description shall, 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 Properties designated Property Subsidiary shall own all right, title and interest to the rents, accounts and other revenues from such Eligible Real Estate. Such Eligible Real Estate shall (x) be free and clear of all Liens and Negative Pledges (other than the Liens permitted in §8.2(i)(A) and §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 Eligible Real Estate (including any restrictions contained in any applicable organizational documents) other than any restriction on sale, transfer, 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, (B) asset 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 Borrower carve-outs in this clause (y), a “Negative Pledge”);
(ii) none of the Eligible Real Estate or any equipment used therein shall have any material structural defects or major architectural deficiencies, title defects, materially adverse environmental conditions or other materially adverse matters in each case except for defects, deficiencies, conditions or other matters individually or collectively which are not materially adverse to constitute the profitable operation of such Eligible Real Estate, and such Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6 that are applicable to Unencumbered Properties hereunder Properties;
(iii) If such Real Estate is owned or leased by an Unencumbered Property Subsidiary, then, without limiting the ability of such Unencumbered Property Subsidiary to guaranty Unsecured Indebtedness otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be 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 Effective Date 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 Capitalized 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 Borrower or another manager approved by Agent, such approval to not be unreasonably withheld;
(v) prior to inclusion of Real Estate as supplemented 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, Borrower shall directly or indirectly own 100% of all equity interests (including all economic, beneficial and voting interests) in such Unencumbered Property Subsidiary, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement, and no direct or indirect ownership or other interests or rights in any such Unencumbered Property Subsidiary or intermediate Subsidiary shall be subject to any Lien or Negative Pledge other than Liens permitted under §8.2(i)(A);
(vii) such Real Estate has been designated as an “Unencumbered Property” on Schedule 1.2 hereto or in a Compliance Certificate delivered in accordance with §7.4(c) or delivered pursuant to this §7.22 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.
(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 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 is repaired or restored, such Real Estate becomes operational (if such Real Estate 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, 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 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 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 time 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 time evaluate and approve such proposed valuation for such Eligible Real Estate.
(c) Upon any asset ceasing to qualify to be included in connection 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, 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 certificate items required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect pursuant to each Property identified from time to time as an Unencumbered Propertythis clause (c), Borrower hereby represents and warrants as follows except shall deliver to the extent disclosed in writing Agent a pro forma Compliance Certificate demonstrating, after giving effect to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development such removal or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973disqualification, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”).
(c) The Unencumbered Property is served by all utilities required for the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility servicecovenants contained in §9.1.
(d) Except In addition, 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, notice of such removal, together with respect to Assets Under Developmenta statement that no Default or Event of Default then exists or would, all roads upon the occurrence of such event or with passage of time, result from such removal, and streets necessary for service the identity of and access to the Unencumbered Property for being removed, and a calculation of the current use thereof have been completedvalue attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, are serviceable 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 all-weather and are physically and legally open for use by the public§9.1.
(e) The Unencumbered Property is served by public water and sewer systems orNotwithstanding the foregoing, if in the Unencumbered Property is event any Real Estate does not serviced by a public water and sewer systemqualify as Eligible Real Estate or satisfy the requirements of §7.22(a), such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect Real Estate shall be included in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value calculation of the Unencumbered Property Asset Value so long as (other than any casualty loss being handled in accordance with x) the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with Agent shall have received the Loan Documents). There is no pending or, prior written consent of each of the Majority Lenders to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof.
(g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion inclusion of such Unencumbered Property.
(h) All improvements on Real Estate in the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record calculation of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy Asset Value and (y) at no time after it is included does such Real Estate fail to satisfy any requirements of the Unencumbered Property, no Majority Lenders imposed as a condition to such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public propertyapproval, and the Unencumbered Property, by virtue any requirements of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach Eligible Real Estate or of any §7.22(a) in addition to those it failed to satisfy at the time such consent of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify Majority Lenders was provided for such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement)inclusion.
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Sources: Credit Agreement (CyrusOne Inc.)
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description (i) Each Property identified by Borrower as an Unencumbered Property in the most-recent Unencumbered Property Report delivered to Administrative Agent hereunder (other than the Initial Unencumbered Properties) satisfies the criteria set forth in the definition of Unencumbered Properties designated Property Pool.
(ii) No Exclusion Event has occurred and is continuing with respect to any Property identified by Borrower as an Unencumbered Property in the most-recent Unencumbered Property Report delivered to Administrative Agent hereunder.
(iii) The Improvements have not suffered any Casualty or otherwise been damaged (ordinary wear and tear excepted) and not repaired.
(iv) No Unencumbered Property is the subject of any pending or, to Borrower or any Subsidiary’s knowledge, threatened Condemnation or adverse zoning proceeding.
(v) Neither Borrower, nor any Subsidiary has made any contract or arrangement of any kind (other than a Disposition Agreement) the performance of which by the other party thereto would give rise to Liens (other than Permitted Liens) on the Unencumbered Properties.
(vi) The Property Plans for each Unencumbered Property have been approved by all applicable Governmental Authorities.
(b) To the extent that failure to comply therewith could not reasonably be expected to cause a Material Property Event with respect to such Unencumbered Property:
(i) Each Unencumbered Property complies with all Laws, including all subdivision and platting requirements, without reliance on any adjoining or neighboring property.
(ii) The Improvements comply with all Laws regarding access and facilities for handicapped or disabled persons.
(iii) Neither Borrower nor any Subsidiary has directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof or do so, except as set forth in Section 2.23 and upon any Disposition Agreement) any development rights, air rights, or other similar rights, privileges, or attributes with respect to any Unencumbered Properties, including those arising under any zoning or property use ordinance or other Law.
(iv) All utility services necessary for the inclusion or removal of a Property as an Unencumbered Property for purposes use of the Borrowing Base Covenants, including Unencumbered Properties and the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents Improvements and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is operation thereof for their intended purpose are available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(bv) To the Borrower’s knowledge, the No Unencumbered Property is part of a larger undivided tract of Property owned by Borrower or any Subsidiary or otherwise included under any unity of title or similar covenant with other Property not owned by Borrower or any Subsidiary and each Unencumbered Property constitutes a separate tax lot or lots with a separate tax assessment D-2216575_11.doc 44 or assessments for such Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining Improvements thereon, independent of those for any other Property or other properties), building codes, land use and Environmental Laws (“Applicable Laws”)improvements.
(cvi) The Unencumbered Property is served by all utilities required for the current and anticipated use thereof. All utility service is provided by public utilities and of the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under Development, all roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise Properties complies in all material respects withwith all applicable zoning ordinances, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage regulations, and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings restrictive covenants affecting the Unencumbered PropertyProperties without the existence of any variance, or any material part thereof.
(g) To Borrower’s knowledgenon-complying use, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Property.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold paymentsnonconforming use, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves special exception, all use restrictions of any Governmental Authority having jurisdiction have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach satisfied, and no violation of any of the representations and warranties contained in this Section 3.13 Law or regulation exists with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement)thereto.
Appears in 1 contract
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant Subject to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
clause (b) To the Borrower’s knowledgeof this §7.16, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”).
(c) The Unencumbered Property is served by all utilities required for the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under Development, all roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect Eligible Real Estate included in the calculation of Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value Asset Value shall at all times satisfy all of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof.
(g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Property.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.following conditions:
(i) There are the Eligible Real Estate shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Borrower or a Wholly Owned Subsidiary of Borrower or a Controlled JV Entity (each such Subsidiary and Controlled JV Entity, an “Unencumbered Property Subsidiary”), free and clear of all Liens other than the Liens permitted in §8.2(iii) and 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 documents but excluding any such limitations permitted pursuant to the last sentence of §7.12(a));
(ii) none of the Eligible Real Estate 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;
(iii) if such Real Estate is owned by an Unencumbered Property Subsidiary, the only assets of such Unencumbered Property Subsidiary shall be Eligible Real Estate included in the calculation of Unencumbered Asset Value;
(iv) 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 material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold paymentsPerson other than the Borrower, or other outstanding charges affecting a direct or indirect Wholly Owned Subsidiary of the Borrower has any direct or indirect ownership of any legal, equitable or beneficial interest in such Unencumbered Property Subsidiary (except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 that with respect to a Property shall disqualify 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 Property from being an Unencumbered Property for 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 or satisfy the requirements of §7.16(a), such Real Estate shall be included in the calculation of Unencumbered Asset Value so long as such breach continues (unless otherwise approved by the Agent shall have received the prior written consent of each of the Required Lenders) but shall not constitute a Default (unless Lenders to the elimination inclusion of such Property as an Real Estate in the calculation of Unencumbered Property results Asset Value.
c) Upon any asset ceasing to qualify under §7.16(a) or (b) to be included in a Default under one the calculation of Unencumbered Asset Value, such asset shall no longer be included in the other provisions calculation of this Agreement)Unencumbered Asset Value.
d) In addition, the Borrower may voluntarily remove any Real Estate from the calculation of Unencumbered Asset Value in its sole discretion.
Appears in 1 contract
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified shall be subject to or encumbered by any Indebtedness, or by any other Material Agreement that by its terms precludes the Secretary grant of Housing and Urban Development the Collateral or any successor thereto as an area having special flood hazards pursuant the exercise by or on behalf of the Secured Creditors of remedies with respect to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered PropertyCollateral.
(b) To A Property may cease to qualify as an Unencumbered Real Property, but may subsequently regain its status as a Unencumbered Real Property as provided in clause (c) below; provided, however, if an Event of Default has occurred as a result of the Borrower’s knowledgefailure to satisfy the Required Minimum Unencumbered Asset Ratio, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”)such Event of Default shall not be cured as a result of such re-qualification.
(c) Borrower may include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Unencumbered Real Properties but ceased to qualify as such) by sending (i) a written certification that such Property then satisfies the criteria for a Unencumbered Real Property or, if a waiver or discretionary approval is required with respect to any element thereof, so specifying, and (ii) if requested by Administrative Agent, reasonable supporting documentation with respect to each of the elements of such certification or request. The Unencumbered Property is served by all utilities required for Administrative Agent will make such request and materials available to the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility serviceLenders.
(d) Except with respect to Assets Under Development, all roads and streets necessary for service Borrower shall promptly after any Responsible Officer of and access to the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting an Unencumbered Real Property for or (ii) the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware occurrence of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents event or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The affecting an Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Real Property, or (iii) any material part thereof.
bankruptcy or insolvency proceeding involving a Tenant at an Unencumbered Real Property, or (giv) To Borrower’s knowledgeany other event or occurrence which would cause an Unencumbered Real Property to cease to qualify as such. In such event, all liquid and solid waste disposal, septic and sewer systems located on the affected Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Real Property will be upon completion of such Unencumbered Property.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions immediately, as of the legal description occurrence, cease to qualify as an Unencumbered Real Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of record less than 25% of the Unencumbered Property other than encroachments rentable square footage and provided that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered PropertyTenant, by virtue way of such easements business interruption insurance proceeds or otherwise, is contiguous continuing to a physically open, dedicated all weather public street, pay rent and other charges under its lease and the applicable Property Owner has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except given reasonable security to the extent Lenders to insure that such items are being contested repair, restoration or remediation will be promptly and diligently resolved in a good faith and as to which adequate reserves have been provided.
▇▇▇▇▇▇▇-like manner within sixty (j60) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify days, then such Property from being will not cease to qualify as an Unencumbered Real Property for so long as such breach continues conditions remain satisfied and provided that such issues are finally repaired or resolved within sixty (unless otherwise approved 60) days.
(e) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent (i) of any pay-down, pay off or other reduction in the outstanding amount of any Qualified Tenant Note, in which event the amount of the affected Qualified Tenant Note will immediately, as of the occurrence, be reduced in calculating the Total Value; (ii) (x) of any event or occurrence which would cause the representations in Section 6.9.6 with respect to a Qualified Tenant Note to be inaccurate in any respect, or (y) if any Qualified Tenant Note is not held and/or economic and beneficial interest in such Qualified Tenant Note is not owned by the Required Lenders) but shall not constitute a Default (unless holder by such Qualified Tenant Note as of the elimination date hereof, in which event, the affected Qualified Tenant Note will immediately, as of such Property the occurrence, cease to qualify as an Unencumbered Property results in a Default under one hereunder.
(f) So long as the Loan is outstanding, Borrower shall, and shall cause its applicable Affiliate to, either extend the term of the Swift Spinning Property Ground Lease or exercise its purchase option for a $100 thereunder. In the event Borrower fails to comply with this Section 7.1.16(f), the Swift Spinning Property Ground Lease will immediately, as of the occurrence, cease to qualify as a Qualified Ground Lease and the applicable Property shall cease to qualify as an Unencumbered Real Property hereunder.
(g) On August 16, 2012, American LubeFast, LLC (“LubeFast”), a Major Tenant, filed a bankruptcy proceeding under Chapter 11 of the United States Bankruptcy Code (the “LubeFast Bankruptcy”). Spirit Master Funding IV, LLC, a Subsidiary Guarantor, currently leases 28 Properties (the “LubeFast Properties”) to LubeFast pursuant to a Master Lease Agreement dated as of September 7, 2007 (as amended prior to the date hereof, the “LubeFast Master Lease”). The Borrower represents and warrants that (i) but for the LubeFast Bankruptcy, the Properties leased under the LubeFast Master Lease would qualify as Unencumbered Real Properties hereunder and (ii) to the Borrower’s knowledge, LubeFast intends to assume the LubeFast Master Lease in the LubeFast Bankruptcy. In consideration of the foregoing, the Administrative Agent and the Lenders have agreed to deem the LubeFast Properties to qualify as Unencumbered Real Properties as of the Closing Date and notwithstanding the LubeFast Bankruptcy, upon and subject to the following terms and conditions:
(i) The Borrower shall keep Administrative Agent reasonably apprised with respect to the LubeFast Bankruptcy and shall provide Administrative Agent with copies of all filings and other provisions notices or materials received by it or Spirit Master Funding IV, LLC in connection therewith within three (3) Business Days after receipt thereof. Borrower shall notify Administrative Agent within one (1) Business Day of this any rejection or assumption, in whole or in part, of the LubeFast Master Lease.
(ii) Net Operating Income attributable to the LubeFast Master Lease shall be deemed reduced by fifteen percent (15%) unless and until the LubeFast Master Lease is finally assumed under the LubeFast Bankruptcy, at which time actual Net Operating Income attributable to the LubeFast Master Lease shall be included for purposes of the calculations hereunder.
(iii) The LubeFast Properties shall cease to be deemed Unencumbered Real Properties hereunder upon the earliest to occur of (a) the date that the LubeFast Master Lease is rejected or deemed rejected in the LubeFast Bankruptcy, (b) the date that LubeFast ceases to pay rent and/or other amounts owed to Spirit Master Funding IV, LLC to the extent such amounts become due and payable under the LubeFast Master Lease during the pendancy of the LubeFast Bankruptcy, are required to be paid under Section 365(d)(5) of the Bankruptcy Code, and relate to the time period of the LubeFast Bankruptcy, and (c) February 28, 2013, unless the LubeFast Master Lease is earlier assumed under the LubeFast Bankruptcy, in which event the LubeFast Properties shall be treated as all other Unencumbered Real Properties hereunder.
(iv) But for the LubeFast Bankruptcy, the LubeFast Properties shall otherwise continue to satisfy the conditions to qualify as Unencumbered Real Properties hereunder.
(v) Spirit Master Funding IV, LLC shall remain a Subsidiary Guarantor notwithstanding any cessation of all or any LubeFast Properties to qualify as Unencumbered Real Properties hereunder.
(h) On or prior to the Closing, Borrower shall deposit into the Title Escrow, the following documents and funds relating to the Spirit SPE Portfolio 2007-1, LLC Properties: (i) funds sufficient to repay all liens encumbering the Spirit SPE Portfolio 2007-1, LLC Properties on November 1, 2012, (ii) an amendment to the limited liability operating agreement of Spirit SPE Portfolio 2007-1, LLC in form and substance satisfactory to Administrative Agent and effective as of February 2, 2012, (iii) a Joinder to Security Agreement, Joinder to Subsidiary Guaranty, and Acknowledgement of Pledge, each duly executed by Spirit SPE Portfolio 2007-1, LLC but effective only as of November 1, 2012, (iv) an amendment to the Pledge Agreement, pledging all interests in Spirit SPE Portfolio 2007-1, LLC, and, if certificated, the duly issued certificates evidencing such interests, duly executed by Borrower but effective only as of November 1, 2012, and (v) such other documents or instruments or opinions as Lender may reasonably require. Pursuant to the Title Escrow Agreement, Borrower shall irrevocably authorize Title Company to repay the loans and obligations encumbering the Spirit SPE Portfolio 2007-1, LLC Properties (the “Midland Loans”) on November 1, 2012 in accordance with the payoff statement attached thereto and concurrently therewith to deliver all escrowed documents and materials to Administrative Agent. In consideration of the foregoing, the Administrative Agent and the Lenders have agreed to deem the Spirit SPE Portfolio 2007-1, LLC Properties to qualify as Unencumbered Real Properties effective as of the Closing Date notwithstanding that the liens thereon will not be repaid until November 1, 2012. If for any reason the Midland Loans are not repaid in full on or before November 1, 2012 and the liens of the mortgages secured thereby released on or before November 30, 2012 (or such later date as Administrative Agent may agree in its reasonable discretion), or if any Spirit SPE Portfolio 2007-1, LLC Property(ies) shall for any other reason cease to satisfy the conditions to qualify as Unencumbered Real Properties hereunder, the Spirit SPE Portfolio 2007-1, LLC Properties shall cease to be deemed Unencumbered Real Properties hereunder. Further, if for any reason the Midland Loans cannot be repaid on or before November 5, 2012, then, unless otherwise agreed by Administrative Agent, Escrow Agent will be instructed to deliver the escrowed funds to Administrative Agent on behalf of the Banks, to be applied in repayment of the Loan and other amounts due under the Loan Documents (with any excess remaining balance being returned to the Borrower), and all other escrowed documents and materials shall be returned to Borrower.
Appears in 1 contract
Unencumbered Properties. Schedule 3.13 5.19 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Closing Date and as supplemented from time to time in connection with the delivery of the certificate required under a Compliance Certificate pursuant to Section 5.01(d6.01(c) hereof or as set forth in Section 2.23 2.19 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenantsfinancial covenants contained in Section 7.11, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”).
(c) The Unencumbered Property is served by all utilities required for the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under Development, all public roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof.
(g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Propertysystems.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 5.19 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement).
Appears in 1 contract
Unencumbered Properties. Schedule 3.13 5.19 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Closing Date and as supplemented from time to time in connection with the delivery of the certificate required under a Compliance Certificate pursuant to Section 5.01(d6.01(c) hereof or as set forth in Section 2.23 2.18 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenantsfinancial covenants contained in Section 7.09, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”).
(c) The Unencumbered Property is served by all utilities required for the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under Development, all public roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof.
(g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Propertysystems.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 5.19 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement).
Appears in 1 contract
Sources: Credit Agreement (Dividend Capital Diversified Property Fund Inc.)
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified shall be subject to or encumbered by any Indebtedness, or by any other Material Agreement that by its terms precludes the Secretary grant of Housing and Urban Development the Collateral or any successor thereto as an area having special flood hazards pursuant the exercise by or on behalf of the Secured Creditors of remedies with respect to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered PropertyCollateral.
(b) To A Property may cease to qualify as an Unencumbered Real Property, but may subsequently regain its status as a Unencumbered Real Property as provided in clause (c) below; provided, however, if an Event of Default has occurred as a result of the Borrower’s knowledgefailure to satisfy the Required Maximum Unencumbered Asset Ratio, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”)such Event of Default shall not be cured as a result of such re-qualification.
(c) Borrower may include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Unencumbered Real Properties but ceased to qualify as such) by sending (i) a written certification that such Property then satisfies the criteria for a Unencumbered Real Property or, if a waiver or discretionary approval is required by the Required Lenders with respect to any element thereof, so specifying, and (ii) if requested by Administrative Agent or the Required Lenders, reasonable supporting documentation with respect to each of the elements of such certification or request. The Unencumbered Property is served by all utilities required for Administrative Agent will make such request and materials available to the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility serviceLenders.
(d) Except with respect to Assets Under Development, all roads and streets necessary for service Borrower shall promptly after any Responsible Officer of and access to the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting an Unencumbered Real Property for or (ii) the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware occurrence of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents event or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The affecting an Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Real Property, or (iii) any material part thereof.
bankruptcy or insolvency proceeding involving a Tenant at an Unencumbered Real Property, or (giv) To Borrower’s knowledgeany other event or occurrence which would cause an Unencumbered Real Property to cease to qualify as such. In such event, all liquid and solid waste disposal, septic and sewer systems located on the affected Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Real Property will be upon completion of such Unencumbered Property.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions immediately, as of the legal description occurrence, cease to qualify as an Unencumbered Real Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of record less than 25% of the Unencumbered Property other than encroachments rentable square footage and provided that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered PropertyTenant, by virtue way of such easements business interruption insurance proceeds or otherwise, is contiguous continuing to a physically open, dedicated all weather public street, pay rent and other charges under its lease and the applicable Property Owner has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except given reasonable security to the extent Lenders to insure that such items are being contested repair, restoration or remediation will be promptly and diligently resolved in a good faith and as to which adequate reserves have been provided.
▇▇▇▇▇▇▇-like manner within sixty (j60) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify days, then such Property from being will not cease to qualify as an Unencumbered Real Property for so long as such breach continues conditions remain satisfied and provided that such issues are finally repaired or resolved within sixty (unless otherwise approved 60) days.
(e) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent (i) of any pay-down, pay off or other reduction in the outstanding amount of any Qualified Tenant Note, in which event the amount of the affected Qualified Tenant Note will immediately, as of the occurrence, be reduced in calculating the Unencumbered Total Value; (ii) (x) of any event or occurrence which would cause the representations in Section 6.9.6 with respect to a Qualified Tenant Note to be inaccurate in any respect, or (y) if any Qualified Tenant Note is not held and/or economic and beneficial interest in such Qualified Tenant Note is not owned by the Required Lenders) but shall not constitute a Default (unless the elimination of holder by such Property Qualified Tenant Note as an Unencumbered Property results in a Default under one of the other provisions date hereof, in which event, the affected Qualified Tenant Note will immediately, as of this Agreement)the occurrence, cease to qualify with respect to Unencumbered Total Value hereunder.
Appears in 1 contract
Sources: Credit Agreement (Cole Credit Property Trust II Inc)
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 2.21 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”).
(c) The Except to the extent not completed on Assets Under Development and Land, the Unencumbered Property is served by all utilities required for the current use thereof. All , all utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to the extent not completed on Assets Under DevelopmentDevelopment and Land, all roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Except to the extent not completed on Assets Under Development and Land, the Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower▇▇▇▇▇▇▇▇, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof, in each case that would materially detract from the value of such Unencumbered Property, impair the use or operation thereof, or interfere with the ordinary conduct of business of the Borrower or any Subsidiary.
(g) To Except to the extent not completed on Assets Under Development and Land, to Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Property..
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default or an Event of Default (unless the elimination of such Property as an Unencumbered Property results in a Default or Event of Default under one of the other provisions of this Agreement).
Appears in 1 contract
Sources: Credit Agreement (ARES INDUSTRIAL REAL ESTATE INCOME TRUST Inc.)
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by (a) The Eligible Real Estate included in the Borrower to constitute Unencumbered Properties hereunder as calculation of the Effective Date and as supplemented from time to time in connection with the delivery Unencumbered Asset Value shall at all times satisfy all of the certificate required following conditions:
(i) the Eligible Real Estate shall be owned one hundred percent (100%) in fee simple or leased under Section 5.01(d) hereof a ground lease acceptable to the Required Holders in its reasonable discretion by a Wholly-Owned Subsidiary of the Company (it being understood that the ground lease for the WPI07 Tulsa Property shall be an acceptable ground lease), in each case free and clear of all Liens other than 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 and excluding any right of first offer/refusal or purchase option as set forth in Section 2.23 the leases provided to the holders of Notes);
(ii) none of the Eligible Real Estate 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 refinance such property;
(iii) the only asset of such Subsidiary shall be Eligible Real Estate included in the calculation of the Unencumbered Asset Value and upon related fixtures and personal property;
(iv) each Eligible Real Estate is and shall be at least eighty percent (80%) leased (based on Net Rentable Area) to one or more tenants which are an Eligible Tenant;
(v) no more than ten percent (10%) of the inclusion or removal total Unencumbered Asset Value shall be attributable to Real Estate which 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 (v) shall not result in any Real Estate not being included as a Property as an Subject Property, but any such Unencumbered Property Asset Value in excess of such limitation being excluded for purposes of calculating Unencumbered Asset Value and the Borrowing Base CovenantsUnencumbered 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 entity 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 owns each all or any material portion of any Eligible Real Estate included in the calculation of the Unencumbered PropertyAsset Value shall be damaged in any material respect or taken by condemnation, then such property 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 and the holders of Notes shall have received evidence reasonably satisfactory to the Required Holders of the value of such real estate following such repair or restoration (both at such time and prospectively) or (ii) Required Holders shall have received evidence reasonably satisfactory to the Required Holders that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. With respect to each Property identified from time to In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation of the Unencumbered Asset Value, then the Required Holders may in good faith reduce the Unencumbered Asset Value attributable thereto based on such damage until such time as an Unencumbered Property, Borrower hereby represents and warrants as follows except the Required Holders receive evidence reasonably satisfactory to the extent disclosed Required Holders that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage 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 Value unless otherwise approved in writing to the Lenders and approved by the Required Lenders Holders (which approval shall not be unreasonably withheld):
, conditioned, or delayed). Within five (a5) No portion Business Days after becoming aware of any improvement on such disqualification, the Company shall deliver to the 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 Property is located in an area identified by Asset Value attributable to such asset. Simultaneously with the Secretary delivery of Housing and Urban Development or any successor thereto as an area having special flood hazards the items required pursuant above, the Company shall deliver to the National Flood Insurance Act holders of 1968 Notes an updated Unencumbered Asset Certificate demonstrating, after giving effect to such removal or the Flood Disaster Protection Act of 1973disqualification, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other propertiesthe conditions and covenants contained in this Section 9.9 and Section 10.10(a) and Section 10.10(b), building codes, land use and Environmental Laws (“Applicable Laws”).
(c) The Unencumbered Property is served by all utilities required for the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under DevelopmentIn addition, all roads and streets necessary for service the Company may voluntarily remove any Real Estate from the calculation of and access the Unencumbered Asset Value by delivering to the holders of Notes, no later than five (5) Business Days prior to date on which such removal is to be 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, the identity of the Gladstone Commercial Limited Partnership Note Purchase Agreement Subject Property being removed. Simultaneously with the delivery of the items required above, the Company shall deliver to the holders of Notes a pro forma Compliance Certificate and Unencumbered Property for Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the current use thereof have been completed, are serviceable covenants contained in this Section 9.9 and all-weather Section 10.10(a) and are physically and legally open for use by the publicSection 10.10(b).
(e) The Unencumbered Property is served by public water and sewer systems or, if Company shall promptly notify the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware holders of Notes of the addition or removal of any material latent or patent structural defect in Real Estate from the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value calculation of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereofAsset Value.
(g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Property.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement).
Appears in 1 contract
Sources: Note Purchase Agreement (Gladstone Commercial Corp)
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description list of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof a Borrowing Base Certificate or as set forth in Section Sections 2.23 and 9.22 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base CovenantsProperty, including the name of the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants in all material respects as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheldwithheld conditioned or delayed):
(a) No To the Borrower’s knowledge, no portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”), subject to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(c) The Except to the extent not completed on Assets Under Development and Land, the Unencumbered Property is served by all utilities required for the current use thereof. All , all utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service, subject to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(d) Except with respect to the extent not completed on Assets Under DevelopmentDevelopment and Land, all roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public, subject to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(e) The Except to the extent not completed on Assets Under Development and Land, the Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems, subject to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(f) Borrower is not aware of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof, in each case that would materially detract from the value of such Unencumbered Property, materially impair the use or operation thereof, or materially interfere with the ordinary conduct of business of the Borrower or any Subsidiary.
(g) To Except to the extent not completed on Assets Under Development and Land, to Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Property, subject, in each case, to such exceptions which are not likely to have, in the aggregate, a Material Adverse Effect.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies in all material respects each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default or an Event of Default (unless the elimination of such Property as an Unencumbered Property results in a Default or Event of Default under one of the other provisions of this Agreement).
Appears in 1 contract
Unencumbered Properties. Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as As of the Effective Date Agreement Execution Date, Schedule 7 is a correct and as supplemented from time to time in connection with the delivery complete list of the certificate required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Initial Unencumbered Property for purposes of the Borrowing Base CovenantsProperties, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):all applicable ownership information and:
(a) No portion Each of any improvement on the Unencumbered Property Properties is not located in an area that has been identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to 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, law or, if any portion of the industrial buildings on such Properties are located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, Subsidiary Guarantor has obtained and will maintain through the Term B Facility Termination Date the insurance coverage for flood and other water damage prescribed in the amount of the replacement cost of the improvements at the Unencumbered PropertySection 5.17 hereof.
(b) To the Borrower’s knowledge, each of the Unencumbered Property Properties and the present use and occupancy thereof are in material compliance with all applicable material 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 environmental assessments delivered to the Administrative Agent pursuant to this Agreement) and other similar laws (“Applicable Laws”).
(c) The Each of the Unencumbered Property Properties is served by all utilities required for the current or contemplated use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under DevelopmentTo Borrower’s knowledge, all public roads and streets necessary for service of and access to each of the Unencumbered Property Properties for the current or contemplated use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public, or appropriate insured private easements are in place.
(e) The Unencumbered Property is served Except as disclosed in any property condition reports delivered by public water and sewer systems orthe Administrative Agent, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect in or other significant deficiency of the Unencumbered PropertyProperties. The Each of the Unencumbered Property Properties is free of damage and waste that would materially and adversely affect the value of such Unencumbered Property, is in good condition and repair and to Borrower’s knowledge there is no deferred maintenance other than ordinary wear and tear. Each of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property Properties is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereofcasualty.
(gf) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property Properties are in a good and safe condition and repair adequate for its intended use and, and to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Propertysystems.
(hg) All To Borrower’s knowledge, all improvements on the each Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of such Unencumbered Property, no improvements encroach upon easements benefiting the Unencumbered Property Properties other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, Properties and no such improvements on adjoining properties encroach upon the Unencumbered Properties or upon easements benefiting the Unencumbered Property Properties other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property Properties.
(h) To Borrower’s knowledge, all Leases are in full force and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do effect. Borrower is not materially adversely affect the use or occupancy in default under any Lease and Borrower has disclosed to Lenders in writing any material default, of which Borrower has knowledge, under any Lease which demises any material portion of the related Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property Properties except to the extent such items are being contested in good faith by appropriate proceedings and as to which adequate reserves have been providedprovided and there is no risk of loss, forfeiture, or sale of any interest in the Unencumbered Properties during such proceedings. Each of the Unencumbered Properties is taxed separately without regard to any other property not included in the Unencumbered Properties.
(j) Each No condemnation proceeding or eminent domain action is pending or threatened against any of the Unencumbered Properties which would impair the use, value, sale or occupancy of such Unencumbered Property satisfies each (or any portion thereof) in any material manner.
(k) Each of the requirements Unencumbered Properties is not, nor is any direct or indirect interest of Borrower or any Subsidiary Guarantor in any Unencumbered Property or in the ownership interest with respect to any owner of an Unencumbered Property, subject to any Lien other than Permitted Liens set forth in clauses (i) through (iv) of Section 6.14 or to any Negative Pledge (other than the definition Liens and Negative Pledges created pursuant to this Agreement to secure the obligations of “Unencumbered Property”. A breach of any of Borrower and the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this AgreementSubsidiary Guarantors).
Appears in 1 contract
Unencumbered Properties. Schedule 3.13 hereto contains (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 shall be owned 100% in fee simple, or leased pursuant to a complete 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 and accurate description shall, 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 Properties designated Property Subsidiary shall own all right, title and interest to the rents, accounts and other revenues from such Eligible Real Estate. Such Eligible Real Estate shall (x) be free and clear of all Liens and Negative Pledges (other than the Liens permitted in §8.2(i)(A) and §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 Eligible Real Estate (including any restrictions contained in any applicable organizational documents) other than any restriction on sale, transfer, 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, (B) asset 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, (D) any restrictions arising under any Loan Document, or (E) restrictions in a Ground Lease or Lease contained in such Ground Lease or Lease which is approved by the Borrower Majority Lenders in connection with the addition of the applicable Eligible Real Estate as an Unencumbered Property (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) none of the Eligible Real Estate or any equipment used therein shall have any material structural defects or major architectural deficiencies, title defects, materially adverse environmental conditions or other materially adverse matters in each case except for defects, deficiencies, conditions or other matters individually or collectively which are not materially adverse to constitute the profitable operation of such Eligible Real Estate, and such Real Estate shall be in compliance with the representations in §6.20 and the requirements of §8.6 that are applicable to Unencumbered Properties hereunder Properties;
(iii) if such Real Estate is owned or leased by an Unencumbered Property Subsidiary, then, without limiting the ability of such Unencumbered Property Subsidiary to guaranty Unsecured Indebtedness otherwise permitted hereunder, such Unencumbered Property Subsidiary shall not be 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 Effective Original Closing Date 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 Capitalized 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 $10,000,000.00 in the aggregate at any time outstanding);
(iv) such Eligible Real Estate is managed by Borrower or another manager approved by Agent, such approval to not be unreasonably withheld;
(v) prior to inclusion of Real Estate as supplemented 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, unless such Unencumbered Property Subsidiary is a Controlled Joint Venture, Borrower shall directly or indirectly own 100% of all equity interests (including all economic, beneficial and voting interests) in such Unencumbered Property Subsidiary, if such Unencumbered Property Subsidiary is a Controlled Joint Venture, Borrower shall directly or indirectly own such interests and have such rights and control so that such Person qualifies as a Controlled Joint Venture under the definition thereof, any and all intermediate entities shall be Subsidiary Guarantors to the extent required by this Agreement, and no direct or indirect ownership or other interests or rights in any such Unencumbered Property Subsidiary (except with respect to any interest in a Controlled Joint Venture not required to be owned directly or indirectly by Borrower) or intermediate Subsidiary shall (except with respect to a Controlled Joint Venture, any intermediate entities owned by the Person that owns the interests not required to be owned by Borrower) be subject to any Lien or Negative Pledge other than Liens permitted under §8.2(i)(A);
(vii) such Real Estate has been designated as an “Unencumbered Property” on Schedule 1.2 hereto or in a Compliance Certificate delivered in accordance with §7.4(c) or delivered pursuant to this §7.22 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);
(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; and
(ix) the Borrower or Unencumbered Property Subsidiary owning such 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 a State, consistent with the requirements of §7.2.
(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 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 is repaired or restored, such Real Estate becomes operational (if such Real Estate 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, 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 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 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 time 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 time evaluate and approve such proposed valuation for such Eligible Real Estate.
(c) Upon any asset ceasing to qualify to be included in connection 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, 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 certificate items required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect pursuant to each Property identified from time to time as an Unencumbered Propertythis clause (c), Borrower hereby represents and warrants as follows except shall deliver to the extent disclosed in writing Agent a pro forma Compliance Certificate demonstrating, after giving effect to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development such removal or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973disqualification, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws (“Applicable Laws”).
(c) The Unencumbered Property is served by all utilities required for the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility servicecovenants contained in §9.1.
(d) Except In addition, 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, notice of such removal, together with respect to Assets Under Developmenta statement that no Default or Event of Default then exists or would, all roads upon the occurrence of such event or with passage of time, result from such removal, and streets necessary for service the identity of and access to the Unencumbered Property for being removed, and a calculation of the current use thereof have been completedvalue attributable to such Unencumbered Property. Simultaneously with the delivery of the items required pursuant above, are serviceable 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 all-weather and are physically and legally open for use by the public§9.1.
(e) The Unencumbered Property is served by public water and sewer systems orNotwithstanding the foregoing, if in the Unencumbered Property is event any Real Estate does not serviced by a public water and sewer systemqualify as Eligible Real Estate or satisfy the requirements of §7.22(a), such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect Real Estate shall be included in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value calculation of the Unencumbered Property Asset Value so long as (other than any casualty loss being handled in accordance with x) the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with Agent shall have received the Loan Documents). There is no pending or, prior written consent of each of the Majority Lenders to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereof.
(g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion inclusion of such Unencumbered Property.
(h) All improvements on Real Estate in the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record calculation of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy Asset Value and (y) at no time after it is included does such Real Estate fail to satisfy any requirements of the Unencumbered Property, no Majority Lenders imposed as a condition to such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public propertyapproval, and the Unencumbered Property, by virtue any requirements of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach Eligible Real Estate or of any §7.22(a) in addition to those it failed to satisfy at the time such consent of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify Majority Lenders was provided for such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement)inclusion.
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Sources: Credit Agreement (CyrusOne Inc.)
Unencumbered Properties. Except as set forth in Schedule 3.13 hereto contains a complete and accurate description of Unencumbered Properties designated by the Borrower to constitute Unencumbered Properties hereunder as of the Effective Date and as supplemented from time to time in connection with the delivery of the certificate required under Section 5.01(d) hereof 6.23 or as set forth in Section 2.23 and upon the inclusion written engineer reports provided to Agent on or removal of a Property as an Unencumbered Property for purposes before the date hereof, all of the Borrowing Base CovenantsUnencumbered Properties, including the entity that owns each Unencumbered Property. With respect and all major building systems located thereon, are structurally sound, in good condition and working order and free from material defects, subject to each Property identified from time to time as an Unencumbered Propertyordinary wear and tear, Borrower hereby represents except for such portion of such Real Estate which is not occupied by any tenant and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall may not be unreasonably withheld):
(a) No portion in final working order pending final build-out of any improvement on such space except where such defects have not had and could not reasonably be expected to have a Material Adverse Effect. Each of the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973Properties, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are operation thereof, is in material compliance with all applicable zoning federal and state law and governmental regulations and any local ordinances, orders or regulations, including without limitation, laws, regulations and ordinances (without reliance upon adjoining or other properties)relating to zoning, building codes, land use subdivision, fire protection, health, safety, handicapped access, historic preservation and protection, wetlands, tidelands, and Environmental Laws (“Applicable Laws”).
(c) The Unencumbered Property is served by all except in cases that would not reasonably cause a Material Adverse Effect. All water, sewer, electric, gas, telephone and other utilities required necessary for the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service.
(d) Except with respect to Assets Under Development, all roads and streets necessary for service of and access to the Unencumbered Property for the current use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.
(e) The Unencumbered Property is served by public water and sewer systems or, if the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware of any material latent or patent structural defect in the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value operation of the Unencumbered Property (other than Properties are installed to the property lines of the Unencumbered Properties through dedicated public rights of way or through perpetual private easements and, except in the case of drainage facilities, are connected to the Building located thereon with valid permits and are adequate to service the Building in compliance with applicable law, and except where the failure of any casualty loss being handled in accordance with of the Loan Documents foregoing could not reasonably be expected to have a Material Adverse Effect. There are no material unpaid or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire outstanding real estate or other casualty taxes or assessments on or against any of the Unencumbered Properties which are payable by Borrower (except only real estate or other than any casualty loss taxes or assessments, that are not yet delinquent or are being handled in accordance with the Loan Documentsprotested as permitted by this Agreement). There is Except as otherwise disclosed to Agent in writing, there are no pending orpending, or to the actual knowledge of BorrowerBorrower or Subsidiary Guarantors threatened or contemplated, threatened condemnation eminent domain proceedings affecting against any of the Unencumbered PropertyProperties. Except as otherwise disclosed to Agent in writing, or any material part thereof.
(g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on none of the Unencumbered Property are Properties is now damaged as a result of any fire, explosion, accident, flood or other casualty. Except as otherwise disclosed to Agent in a condition and repair adequate for writing, none of the Borrower or Subsidiary Guarantors have received any outstanding notice from any insurer or its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or agent requiring performance of any work with respect to any Unencumbered Property will be upon completion of such Unencumbered Property.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use Properties or occupancy canceling or threatening to cancel any policy of insurance, and each of the Unencumbered PropertyProperties complies with the material requirements of all of the Borrower’s and Subsidiary Guarantors’ insurance carriers, except where any of the foregoing would not reasonably be expected to have a Material Adverse Effect. Except as otherwise disclosed to Agent, the Borrower and the Subsidiary Guarantors have no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy Management Agreements for any of the Unencumbered Property Properties. To the best knowledge of the Borrower and the Subsidiary Guarantors, there are no improvements on adjoining properties encroach upon the material claims or any bases for material claims in respect of any Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments its operation by any party to any service agreement or Management Agreement that do not materially adversely affect the use would have a Material Adverse Effect. No person or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available entity has any right or option to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the acquire any Unencumbered Property or are public propertyany Building thereon or any portion thereof or interest therein, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits except for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except certain tenants pursuant to the extent such items terms of their Leases with Subsidiary Guarantors. The Unencumbered Properties are being contested in good faith insured with financially sound and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach reputable insurance companies not Affiliates of any of the representations Credit Party, in such amounts, with such deductibles and warranties contained in this Section 3.13 covering such risks (including risks with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long environmental claims) as such breach continues (unless otherwise approved are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement)applicable Credit Party or Subsidiary operates.
Appears in 1 contract
Unencumbered Properties. Schedule 3.13 hereto contains (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 shall be owned one hundred percent (100%) in fee simple or leased under a complete ground lease acceptable to Agent in its reasonable discretion by a Wholly-Owned Subsidiary of Borrower, in each case free and accurate clear of all Liens other than the Liens permitted in §8.2(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 and excluding any right of first offer/refusal or purchase option as set forth in the leases provided to the Agent);
(ii) none of the Eligible Real Estate 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 refinance such property;
(iii) the only asset of such Subsidiary shall be Eligible Real Estate included in the calculation of the Unencumbered Asset Value and related fixtures and personal property;
(iv) each Eligible Real Estate is and shall be at least eighty percent (80%) leased (based on Net Rentable Area) to one or more tenants which are an Eligible Tenant;
(v) no more than ten percent (10%) of the total Unencumbered Asset Value shall be attributable to Real Estate which 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 (v) shall not result in any Real Estate not being included as a Subject Property, but any such Unencumbered Asset Value in excess of such limitation being excluded for 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 Unencumbered Properties designated 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 Borrower Agent to constitute Unencumbered Properties hereunder as 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 Effective Date 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 damaged in any material respect or taken by condemnation, then such property 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 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 satisfactory to the Agent that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation of the Unencumbered Asset Value, then the Required Lenders may in good faith reduce the Unencumbered Asset Value attributable thereto based on such damage until such time as supplemented from the Required Lenders receive evidence satisfactory to the Required Lenders that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or condemnation.
(c) Upon any asset ceasing to time qualify to be included in connection the calculation of the Unencumbered Asset Value, such asset shall no longer be included in the calculation of the Unencumbered Asset Value 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 certificate items required under Section 5.01(d) hereof or as set forth in Section 2.23 and upon pursuant above, the inclusion or removal of a Property as an Unencumbered Property for purposes of the Borrowing Base Covenants, including the entity that owns each Unencumbered Property. With respect to each Property identified from time to time as an Unencumbered Property, Borrower hereby represents and warrants as follows except shall deliver to the extent disclosed in writing Agent an updated Unencumbered Asset Certificate demonstrating, after giving effect to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Property is located in an area identified by the Secretary of Housing and Urban Development such removal or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973disqualification, as amended, or any successor law, or, if located within any such area, Borrower or the applicable Subsidiary, to the extent the same is available on commercially reasonable terms, has obtained and will maintain insurance coverage for flood and other water damage in the amount of the replacement cost of the improvements at the Unencumbered Property.
(b) To the Borrower’s knowledge, the Unencumbered Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties)the conditions and covenants contained in this §7.16 and §§9.2, building codes, land use 9.3 and Environmental Laws (“Applicable Laws”).
(c) The Unencumbered Property is served by all utilities required for the current use thereof. All utility service is provided by public utilities and the Unencumbered Property has accepted or is equipped to accept such utility service9.4.
(d) Except with respect to Assets Under DevelopmentIn addition, all roads and streets necessary for service the Borrower may voluntarily remove any Real Estate from the calculation of and access 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, 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, the identity of the Subject Property being removed. Simultaneously with the delivery of the items required above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate and Unencumbered Property for Asset Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the current use thereof have been completedcovenants contained in this §7.16 and §§9.2, are serviceable 9.3 and all-weather and are physically and legally open for use by the public9.4.
(e) The Unencumbered Property is served by public water and sewer systems or, if Agent shall promptly notify the Unencumbered Property is not serviced by a public water and sewer system, such alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems.
(f) Borrower is not aware Lenders of the addition or removal of any material latent or patent structural defect in Real Estate from the Unencumbered Property. The Unencumbered Property is free of damage and waste that would materially and adversely affect the value calculation of the Unencumbered Property (other than any casualty loss being handled in accordance with the Loan Documents or condemnation proceedings being handled in accordance with Loan Documents) and is in adequate repair for its intended use. The Unencumbered Property is free from material damage caused by fire or other casualty (other than any casualty loss being handled in accordance with the Loan Documents). There is no pending or, to the actual knowledge of Borrower, threatened condemnation proceedings affecting the Unencumbered Property, or any material part thereofAsset Value.
(g) To Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer systems located on the Unencumbered Property are in a condition and repair adequate for its intended use and, to Borrower’s knowledge, in material compliance with all Applicable Laws with respect to such systems or with respect to any Unencumbered Property will be upon completion of such Unencumbered Property.
(h) All improvements on the Unencumbered Property lie within the boundaries and building restrictions of the legal description of record of the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property, no such improvements encroach upon easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property and no improvements on adjoining properties encroach upon the Unencumbered Property or easements benefiting the Unencumbered Property other than encroachments that do not materially adversely affect the use or occupancy of the Unencumbered Property. All access routes that materially benefit the Unencumbered Property are available to Borrower or the applicable Subsidiary of the Borrower, constitute permanent easements that benefit all or part of the Unencumbered Property or are public property, and the Unencumbered Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has any necessary permits for ingress and egress.
(i) There are no material delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting the Unencumbered Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided.
(j) Each Unencumbered Property satisfies each of the requirements set forth in the definition of “Unencumbered Property”. A breach of any of the representations and warranties contained in this Section 3.13 with respect to a Property shall disqualify such Property from being an Unencumbered Property for so long as such breach continues (unless otherwise approved by the Required Lenders) but shall not constitute a Default (unless the elimination of such Property as an Unencumbered Property results in a Default under one of the other provisions of this Agreement).
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