Common use of Alienation Clause in Contracts

Alienation. (a) The Mortgagor agrees that if, except for the Permitted Transfers (as defined in subsection (c) below), the Mortgaged Property or the Collateral or any part thereof or interest therein is sold, assigned, transferred, conveyed or otherwise alienated by the Mortgagor (including, without limitation, any leasing of the Mortgaged Property), whether voluntarily or involuntarily or by operation of law, in either or in any case without the prior written consent of the Mortgagee, which may be granted or withheld by the Mortgagee in its sole discretion, the Mortgagee, at its option, may declare the Obligations to be forthwith due and payable. Any change in the legal or equitable title to the Mortgaged Property or the Collateral or any part thereof or interest therein or in the beneficial ownership of the Mortgaged Property or the Collateral or any part thereof or interest therein whether or not of record and whether or not for consideration, or any sale or sales or other disposition of any membership interest in the Mortgagor, shall be deemed to be the transfer of an interest in the Mortgaged Property and the Collateral. (b) Except in the case of a Permitted Transfer, if ownership of the Mortgaged Property or the Collateral or any part thereof or interest therein becomes vested in a person or persons other than the Mortgagor, whether with or without the prior written approval of the Mortgagee, then the Mortgagee may, without notice to the Mortgagor, waive a default if such occurs thereby and deal with such successor or successors in interest with reference to this Mortgage and the other Loan Documents in the same manner as with the Mortgagor, without in any way releasing, discharging or otherwise affecting the liability of the Mortgagor hereunder, or the Obligations. No sale of the Mortgaged Property or the Collateral or any part thereof or interest therein, no forbearance on the part of the Mortgagee, no extension of the time for the payment and performance of the Obligations, and no change in the terms thereof consented to by the Mortgagee shall in any way whatsoever operate to release, discharge, modify, change or affect the original liability of the Mortgagor herein, either in whole or in part, nor shall the full force and effect of this lien be altered thereby.

Alienation. 12.1 Except as otherwise expressly provided to the contrary in this clause 12, Tenant may not (ai) The Mortgagor agrees assign this Lease either in whole or in part, voluntarily or involuntarily, whether by operation of law or otherwise (including through merger or consolidation) to any Person, without the prior written consent of Landlord, which consent may be granted or withheld by Landlord in its sole and absolute discretion or (ii) enter into subleases. Tenant shall have the right, with no consent of Landlord being required or necessary (a Preapproved Assignation) to assign the whole of the Tenant’s interest in this Lease by operation of law or otherwise to any Preapproved Assignee. Any purported sublease or assignation in breach of this clause 12 shall be null and void. In addition, notwithstanding anything to the contrary contained in this clause 12, Tenant shall not have the right to assign this Lease (voluntarily or involuntarily, whether by operation of law or otherwise), or sublet the Premises to any Person at any time that ifa Breach Event exists. 12.2 Notwithstanding any rule of law to the contrary upon each assignation of all or any of the Tenant’s rights and/or interests under the Lease: 12.2.1 the assignee under such assignation shall expressly assume all the obligations of Tenant hereunder, except actual or contingent, including obligations of Tenant which may have arisen on or prior to the date of such assignation, by a written instrument delivered to Landlord at the time of such assignation; 12.2.2 if such assignation is a permitted assignation of the whole of the Tenant interest in this Lease to either (i) a Credit Entity, (ii) an Asset Credit Entity or (iii) a Person whose obligations are guaranteed by a Credit Entity or an Asset Credit Entity pursuant to a Guarantee in the form annexed hereto as Part 10 of the Schedule (but in no other circumstances), then the assignor thereunder and its predecessors in title and any guarantor of this Lease shall, on the date of the entry thereunder be discharged from all liability under this Lease and any guarantee of this Lease, as applicable, but that entirely without prejudice to the Landlord’s right and any assignees obligations hereunder, including those assumed by virtue of the instrument specified at 12.2.1 hereof; 12.2.3 if such assignation is a permitted assignation of the whole of the Tenant interest in this Lease to any Person that is and continues for the Permitted Transfers balance of the Term to be a member of Tenant’s Group (as defined but in subsection (cno other circumstances) below)then the Guarantor shall not be discharged from any liability under the Guarantee, and if required by the Landlord, the Mortgaged Property Guarantor shall again execute the Guarantee concurrently with such assignation; 12.2.4 if such assignation is an assignation other than that set out in 12.2.2 hereof the assignor thereunder shall remain jointly and severally liability for the performance and implementation of the obligation and conditions contained in the Lease and on the part of the Tenant and the assignation shall not affect or reduce any of the Collateral obligations of the assignor nor the Tenant (for the time being) hereunder or of the Guarantor and without prejudice to the provisions of clause 12.2.2 any discharge by the Landlord of the Tenant and for the assignor or their predecessors in title shall only be validly given if executed by the Landlord in self proving manner. 12.3 Tenant shall have the right, upon thirty (30) days prior written notice to Landlord, to enter into one or more subleases with any third parties that let, in the aggregate, up to, but not to exceed twenty-five percent (25%) of the gross lettable area of the Buildings at the Premises, with no consent or approval of Landlord being required or necessary (each, a Preapproved Sublease). Other than pursuant to Preapproved Sublease, at no time during the Term shall subleases exist for more than twenty-five percent (25%) of the gross lettable area of the Buildings at the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. Any Preapproved Sublease and any other sublease consented to by Landlord in accordance with this clause 12.3 shall provide that, as a condition thereto and shall not be effective unless, the applicable subtenant enter into a direct contract with the Landlord to enable the Landlord to achieve the intents of the provisions set forth in clause 12.7. 12.4 Each sublease of the Premises shall (A) not extend beyond the then current Term minus one day; (B) terminate upon any termination of this Lease, unless Landlord elects in writing, to cause the subtenant to recognize Landlord as the Landlord under such sublease, whereupon such sub tenant shall continue as a direct lease between sub tenant and Landlord upon all the terms and conditions of such sublease; and (C) bind the sub-tenant to all undertakings contained in clause 8.14 with respect to sublet premises to the same extent as if the sub-tenants were Tenant. 12.5 Notwithstanding any provision in this clause 12 or elsewhere in this Lease to the contrary, including any right or option Tenant may have to assign this Lease or sublease all or any part thereof portion of the Premises without Landlord’s consent, Tenant shall, upon the request of Landlord, provide and cause such assignee or interest therein is soldsub-tenant to provide, assigned, transferred, conveyed or otherwise alienated by the Mortgagor such information (including, without limitation, any leasing certification) as to any proposed assignee or sub-tenant and its principals as may be required for Landlord and Tenant to comply with regulations administered by OFAC or other governmental action regarding persons or entities with whom U.S. persons or entities are restricted from doing business. 12.6 Tenant shall, within ten (10) days after the execution and delivery of the Mortgaged Property)any assignation or sublease, whether voluntarily or involuntarily or by operation of lawdeliver a duplicate original copy thereof to Landlord which, in either or in any case without the prior written consent event of the Mortgagee, which may be granted or withheld by the Mortgagee in its sole discretion, the Mortgagee, at its option, may declare the Obligations to be forthwith due and payable. Any change in the legal or equitable title to the Mortgaged Property or the Collateral or any part thereof or interest therein or in the beneficial ownership of the Mortgaged Property or the Collateral or any part thereof or interest therein whether or not of record and whether or not for consideration, or any sale or sales or other disposition of any membership interest in the Mortgagoran assignation, shall be deemed to be the transfer in a form capable of an interest registration in the Mortgaged Property Books of Council and Session or an Extract Registered Copy of same. With respect to any assignation to any Preapproved Assignee or any Preapproved Sublease, at least thirty (30) days prior to the Collateraleffective date of such assignation or sublease, Tenant shall provide to Landlord information reasonably required by Landlord to establish that the Person involved in any such proposed assignation or sublease satisfies the criteria set forth in this Lease for a Preapproved Assignation or Preapproved Sublease. (b) Except 12.7 During the continuation of any Breach Event, Landlord shall have the right upon notice to Tenant and any subtenants to collect all rents, issues and profits in the case of a Permitted Transfer, if ownership connection with any subleases now in existence or hereafter entered into for any or all of the Mortgaged Property Premises, including any and all extensions, modifications and renewals thereof. Any amounts collected shall be applied to Rent payments next due and owing with any excess amounts paid to Tenant hereunder. Tenant shall not consent to, cause or allow any modification or alteration of any of the terms, conditions or undertakings of any of the subleases or the Collateral or any part thereof or interest therein becomes vested in a person or persons other than the Mortgagortermination thereof, whether with or without the prior written approval of Landlord which consent shall not be unreasonably withheld nor shall Tenant accept any rents more than thirty (30) days in advance of the Mortgageeaccrual thereof. 12.8 Tenant shall not have the power to grant any standard security, then charge, pledge or otherwise encumber its interest under this Lease or any sublease of the Mortgagee mayPremises, and any such standard security, charge, pledge or encumbrance made in breach of this clause 12 shall be void and of no force and effect provided that, for the avoidance of doubt, nothing in this clause 12.8 shall prevent the Tenant from including its interest in the Lease in a floating charge over all or substantially all of its assets in the case of a bank or major financial institution. Notwithstanding the foregoing, Tenant shall be entitled to grant a security over the whole of Tenant’s interest under this Lease provided that Landlord’s consent is first obtained, which consent shall require, without notice to limitation, that (1) the Mortgagorterms of the security are first approved by Landlord, waive a default if such occurs thereby and deal with such successor or successors in interest with reference to this Mortgage (ii) any conflict between the terms of the security and the terms of this Lease is resolved in favour of the terms of this Lease, and (iii) the security is granted in favour of a bank or other Loan Documents major financial institution. 12.9 Landlord may sell or transfer the Premises at any time without Tenant’s consent to any third party (each a Third Party Purchaser). In the event of any such transfer, Tenant shall be bound and obliged to any Third Party Purchaser as Landlord so long as such Third Party Purchaser and Landlord notify Tenant in writing of such transfer. At the request of Landlord, Tenant will execute such documents confirming the agreement referred to above and such other agreements as Landlord may reasonably request, provided that such agreements do not increase the liabilities and obligations of Tenant hereunder. 12.10 Tenant shall not, in a single transaction or series of transactions (including any merger or consolidation), sell or convey, transfer or lease all or substantially all of its assets (an Asset Transfer) to any Person, and any such Asset Transfer shall be deemed an assignation in breach of this Lease; except that Tenant shall have the right to conduct an Asset Transfer to a Person without Landlord’s consent if the following conditions are met: the Asset Transfer is to a Person that (i) (A) immediately following such transaction or transactions, taken in, the aggregate, is (or would be, on a pro forma basis) a Credit Entity or (B) is approved in writing by Landlord in its sole and absolute discretion or (C) (1) purchases all or substantially all of the assets of Tenant with the stated intention of continuing to operate the business of Tenant and (2) immediately after such transaction or transactions, taken in the same manner aggregate, such Person has on a consolidated basis (or would, on a consolidated pro forma basis, have) for the Applicable Period (x) a Fixed Charge Coverage Ratio of not less than 1.5 to 1.0 and (y) a Total Debt to EBITDAR Ratio of not more than 4.75 to 1.0 (any such other Person under this clause 12.10(i)(C), an Asset Credit Entity); and (ii) this Lease is assigned to and assumed by such Person as with a part of such Asset Transfer. In the Mortgagorevent of an Asset Transfer to a member of Tenant’s Group, without in any way releasing, discharging or otherwise affecting the liability of the Mortgagor hereunder, or the Obligations. No subsequent sale of the Mortgaged Property or the Collateral or any part thereof or interest therein, no forbearance on the part assets of the Mortgagee, no extension original Tenant named herein by such member of Tenant’s Group shall be governed by the requirements of this clause 12.10 irrespective of whether or not such sale would be considered a sale of all or substantially all of the time for assets of such member of Tenant’s Group. For the payment and performance of the Obligations, and no change in the terms thereof consented to by the Mortgagee shall in any way whatsoever operate to release, discharge, modify, change or affect the original liability of the Mortgagor herein, either in whole or in part, nor shall the full force and effect purpose of this lien be altered thereby.clause 12.10 the following terms shall have the following meanings:

Alienation. (a) The 5.13.1 Mortgagor agrees that ifshall not, except for the Permitted Transfers (as defined in subsection (c) below)directly or indirectly, sell, convey, mortgage, pledge, hypothecate, encumber, lease, assign or otherwise transfer the Mortgaged Property or the Collateral or any part thereof or any interest therein is sold, assigned, transferred, conveyed or otherwise alienated by the Mortgagor (including, without limitation, any leasing of the Mortgaged Property), whether voluntarily or involuntarily or by operation of law, in either or in any case without the prior written consent of Mortgagee. 5.13.2 Without limiting the generality of the foregoing, Mortgagor will not create, join or consent to any private restrictive covenant or other restriction affecting the Mortgaged Property or any part thereof, without the prior written consent of Mortgagee. 5.13.3 Acadia Realty Trust, or an affiliate or subsidiary of Acadia Realty Trust in which it directly owns and controls, in the aggregate, at least fifty-one percent (51%) of such affiliate or subsidiary (collectively, “ART”) may assume the Loan provided that: (i) no Event of Default has occurred or is continuing; (ii) ART executes an assumption agreement in form and substance satisfactory to the Mortgagee, (iii) ART provides a replacement guarantor or guarantors for the Loan, which may replacement guarantor(s) shall be granted or withheld by the satisfactory to Mortgagee in its sole discretion; and (iv) ART pays all costs and expenses reasonably incurred in connection with such assumption of the Loan, including, but not limited to, Mortgagee’s reasonable attorneys’ fees and disbursements, title charges and recording fees, if any. Additionally, the Mortgagee, at its option, may declare replacement guarantor(s) shall execute documents (the Obligations to be forthwith due “Replacement Guaranty Documents”) similar in form and payable. Any change in the legal or equitable title substance to the Mortgaged Property or Guaranty Documents, which documents shall contain financial covenants acceptable to Mortgagee and the Collateral or replacement guarantor(s), and any part thereof or interest therein or in other documents as reasonably required by Mortgagee. The foregoing right shall only be exercised one time during the beneficial ownership term of the Mortgaged Property Loan. If it is exercised in accordance with the foregoing, the assumption right shall thereafter be a nullity. 5.13.4 Notwithstanding Section 5.13.1, Mortgagee’s consent shall not be required for any public offering or the Collateral or any part thereof or interest therein whether or not of record and whether or not for consideration, or any sale or sales or other disposition of any membership interest in the Mortgagor, shall be deemed to be the transfer of an interest in the Mortgaged Property and the Collateralshares of Acadia Realty Trust on a national recognized stock exchange. (b) Except in the case of a Permitted Transfer, if ownership of the Mortgaged Property or the Collateral or any part thereof or interest therein becomes vested in a person or persons other than the Mortgagor, whether with or without the prior written approval of the Mortgagee, then the Mortgagee may, without notice to the Mortgagor, waive a default if such occurs thereby and deal with such successor or successors in interest with reference to this Mortgage and the other Loan Documents in the same manner as with the Mortgagor, without in any way releasing, discharging or otherwise affecting the liability of the Mortgagor hereunder, or the Obligations. No sale of the Mortgaged Property or the Collateral or any part thereof or interest therein, no forbearance on the part of the Mortgagee, no extension of the time for the payment and performance of the Obligations, and no change in the terms thereof consented to by the Mortgagee shall in any way whatsoever operate to release, discharge, modify, change or affect the original liability of the Mortgagor herein, either in whole or in part, nor shall the full force and effect of this lien be altered thereby.