Assumability. (A) The Borrowers shall have the right to request that Lender consent to (i) a transfer of all of the Properties to another Person (the "TRANSFEREE BORROWER") and the assumption by the Transferee Borrower of all of the Borrowers' obligations under the Loan Documents, (ii) replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower (collectively, an "ASSUMPTION"), subject to the conditions set forth in paragraphs (B) and (C) of this Section. Together with such written application, the Borrowers will pay to Lender a review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Assumption, whether or not the same is permitted or occurs. (B) Lender shall not withhold its consent to an Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions that: (i) No Event of Default shall have occurred and be continuing at the time of such Assumption; (ii) The Borrowers shall have submitted to Lender true, correct and complete copies of any and all information and documents reasonably requested by Lender concerning the Transferee Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender; (iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates; (iv) The Borrowers shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors and indemnitors and all related transactions; (v) The Borrowers shall have paid all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Assumption, and shall have paid the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption; (vi) The Borrowers, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated in writing in form and substance reasonably satisfactory to Lender their readiness and ability to satisfy the conditions set forth in Subsection (C) below;
Appears in 4 contracts
Samples: Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc)
Assumability. (A) The Borrowers shall have the right to request that Lender consent to (i) a transfer of all of the Properties to another Person (the "TRANSFEREE BORROWER") and the assumption by the Transferee Borrower of all of the Borrowers' obligations under the Loan Documents, (ii) replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower (collectively, an "ASSUMPTION"), subject to the conditions set forth in paragraphs (B) and (C) of this Section. Together with such written application, the Borrowers will pay to Lender a review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Assumption, whether or not the same is permitted or occurs.
(B) Lender shall not withhold its consent to an Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions that:
(i) No Event of Default shall have occurred and be continuing at the time of such Assumption;
(ii) The Borrowers shall have submitted to Lender true, correct and complete copies of any and all information and documents reasonably requested by Lender concerning the Transferee Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors and indemnitors and all related transactions;
(v) The Borrowers shall have paid all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Assumption, and shall have paid the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;
(vi) The Borrowers, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated in writing in form and substance reasonably satisfactory to Lender their readiness and ability to satisfy the conditions set forth in Subsection (C) below;
(a) The Transferee Borrower shall be a Permitted Transferee or (b) the identity, experience and financial condition of the Transferee Borrower shall otherwise be satisfactory to Lender in its reasonable discretion; and
(viii) The identity and financial condition of the replacement guarantors and indemnitors shall be satisfactory to Lender.
(C) If Lender consents to the proposed Assumption, the Transferee Borrower and/or Borrowers, as the case may be, shall promptly and as a condition to the Assumption deliver the following to Lender:
(i) The Borrowers, the Transferee Borrower, the original and replacement guarantors and indemnitors shall execute and deliver any and all documents reasonably required by Lender to evidence the Transfer and Assumption of the Loan, in form and substance reasonably required by Lender and similar to those received at Closing;
(ii) Counsel to the Transferee Borrower and replacement guarantors and indemnitors shall deliver to Lender opinions in form and substance reasonably satisfactory to Lender as to such matters as Lender shall reasonably require in connection with such Assumption, which may include opinions as to substantially the same matters as were required in connection with the origination of the Loan including, without limitation, a bankruptcy non-consolidation opinion;
(iii) The Borrowers shall cause to be delivered to Lender, an endorsement (relating to the change in the identity of the Borrowers and execution and delivery of the Assumption documents) to Lender's policy of title insurance in form and substance acceptable to Lender, in Lender's reasonable discretion; and
(iv) The Borrowers shall deliver to Lender a payment in the amount of all remaining unpaid reasonable costs incurred by Lender in connection with the Transfer and Assumption, including but not limited to Lender's reasonable attorneys' fees and expenses, all recording fees, and all fees payable to the title company in connection with the Transfer and Assumption.
Appears in 3 contracts
Samples: Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc)
Assumability. (A) The Borrowers shall have the right to request that Lender consent to (i) a transfer of all of the Properties to another Person (the "TRANSFEREE BORROWER") and the assumption by the Transferee Borrower of all of the Borrowers' obligations under the Loan Documents, (ii) replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower (collectively, an "ASSUMPTION"), subject to the conditions set forth in paragraphs (BC) and (CD) of this Section. Together with such written application, the Borrowers will pay to Lender a the reasonable review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the same is permitted or occurs.
(B) Lender shall not withhold its consent to an Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions that:
(i) No Event of Default shall have occurred and be continuing at the time of such Assumption;
(ii) The Borrowers shall have submitted to Lender true, correct and complete copies of any and all information and documents reasonably requested by Lender concerning the Transferee Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors and indemnitors and all related transactions;
(v) The Borrowers shall have paid all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Assumption, and shall have paid the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;
(vi) The Borrowers, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated in writing in form and substance reasonably satisfactory to Lender their readiness and ability to satisfy the conditions set forth in Subsection (C) below;
(a) The Transferee Borrower shall be a Permitted Transferee or (b) the identity, experience and financial condition of the Transferee Borrower shall otherwise be satisfactory to Lender in its sole discretion; and
(viii) The identity and financial condition of the replacement guarantors and indemnitors shall be satisfactory to Lender.
(C) If Lender consents to the proposed Assumption, the Transferee Borrower and/or Borrowers, as the case may be, shall promptly and as a condition to the Assumption deliver the following to Lender:
(i) The Borrowers, Transferee Borrower, the original and replacement guarantors and indemnitors shall execute and deliver any and all documents reasonably required by Lender to evidence the Transfer and Assumption of the Loan, in form and substance reasonably required by Lender and similar to those received at Closing;
(ii) Counsel to the Transferee Borrower and replacement guarantors and indemnitors shall deliver to Lender opinions in form and substance reasonably satisfactory to Lender as to such matters as Lender shall reasonably require in connection with such Assumption, which may include opinions as to substantially the same matters as were required in connection with the origination of the Loan including, without limitation, a bankruptcy non-consolidation opinion;
(iii) The Borrowers shall cause to be delivered to Lender, an endorsement (relating to the change in the identity of the Borrowers and execution and delivery of the Assumption documents) to Lender's policy of title insurance in form and substance acceptable to Lender, in Lender's reasonable discretion; and
(D) The Borrowers shall deliver to Lender a payment in the amount of all remaining unpaid reasonable costs incurred by Lender in connection with the Assumption, including but not limited to, Lender's reasonable attorneys' fees and expenses, all recording fees, and all fees payable to the title company in connection with the Transfer and Assumption.
Appears in 2 contracts
Samples: Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc)
Assumability. (A) The In the event that the Borrowers shall have the right desire to request that Lender consent to (i) a transfer of all of the Properties (it being understood and agreed that no transfer of any Individual Property less than all of the Properties shall be permitted pursuant to this Section 11.3) to another Person party (the "TRANSFEREE BORROWER"“Transferee Borrower”) and the assumption by have the Transferee Borrower of assume all of the Borrowers' ’ obligations under the Loan Documents, (ii) and have replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of Guarantor under the Guarantors arising Loan Documents from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower transfer (collectively, an "ASSUMPTION"a “Transfer and Assumption”), Borrowers may make a written application to Lender for Lender’s consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (B) and (C) of this Section; provided that no more than one Transfer and Assumption shall be permitted during the term of the Loan. Together with such written application, the Borrowers will shall pay to Lender a the reasonable review fee of $10,000then required by Lender. The Borrowers also shall pay on demand all of the reasonable out-of-of- pocket costs and expenses incurred by Lender, including reasonable attorneys' ’ fees and expenses, and including the fees and expenses of the Rating Agencies, if any, Agencies and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the same is permitted or occurs.
(B) . Lender shall not may grant or withhold its consent to an a Transfer and Assumption (in its sole and absolute discretion. Completion of any Transfer and Assumption shall be subject to such Assumption consented conditions as Lender may determine to by Lenderimpose, a "PERMITTED ASSUMPTION") provided and upon shall in any event be subject to satisfaction of the conditions thatfollowing conditions:
(i) No Default or Event of Default shall have occurred and be continuing at the time of such Assumptioncontinuing;
(ii) The Borrowers shall have submitted to Lender true, correct and complete copies of any and all information and documents reasonably requested by Lender concerning the Properties, the Transferee Borrower, Borrower and any replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lenderindemnitors;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors Transfer and indemnitors Assumption and all related transactions;
(v) The identity, experience, and financial condition of the Transferee Borrower and the replacement guarantors and indemnitors shall be acceptable to Lender in its reasonable discretion;
(vi) Borrowers shall have paid deliver to Lender at the closing of the Transfer and Assumption an assumption fee in the amount of one percent (1%) of the then unpaid principal balance of the Loan;
(vii) Borrowers, Transferee Borrower, the original and replacement guarantors and indemnitors shall execute and deliver such documents as Lender may require, in form and substance satisfactory to Lender, to evidence the Transfer and Assumption, including replacement guaranties and indemnities and Loan Document modifications;
(viii) Counsel to the Transferee Borrower and replacement guarantors and indemnitors shall deliver to Lender opinions in form and substance satisfactory to Lender as to substantially the same matters for which opinions were required in connection with the origination of the Loan (and as to such additional matters as the Lender and Rating Agencies may require), including, without limitation, a bankruptcy non-consolidation opinion;
(ix) Borrowers shall cause to be delivered to Lender, an endorsement to Lender’s policies of title insurance in form and substance acceptable to Lender, in Lender’s reasonable discretion, relating to, among other things, the change in the identity of the vestee and execution and delivery of the Transfer and Assumption documents and the continuing priority of the Lender’s Mortgages and the continuing effect of the title insurance and all of Lender's endorsements thereto; and
(x) Borrowers shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with considering the Transfer and Assumption, including but not limited to, Lender’s reasonable attorneys’ fees and shall have paid expenses, all recording fees, Rating Agency fees and expenses, and all fees payable to the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses title company in connection with effecting the Transfer and Assumption;
(vi) The Borrowers, the Transferee Borrower, . Upon completion of a Transfer and the Assumption permitted under this Section 11.3 and execution of replacement guaranties and indemnities by replacement guarantors and indemnitors shall have indicated approved by Lender as provided in writing in form this Section 11.3, Borrower and substance reasonably satisfactory to Lender their readiness any original Guarantors shall, as part of the documentation executed at the closing of the Transfer and ability to satisfy Assumption, be released from liability under the conditions set forth in Subsection (C) below;Loan Documents accruing from and after the completion of the Transfer and Assumption, but not from any liabilities for acts and occurrences taking place prior thereto.
Appears in 2 contracts
Samples: Loan and Security Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Loan and Security Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Assumability. (A) The Borrowers shall have the right to request that Lender consent to (i) a transfer of all of the Properties Collateral to another Person (the "TRANSFEREE BORROWER") and the assumption by the Transferee Borrower of all of the Borrowers' obligations under the Loan Documents, (ii) replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Mortgage Borrowers with pledgors new owners of the ownership interests Properties, all in connection with an assumption completed in accordance with Section 11.3 of the Transferee Borrower Mortgage Loan Agreement (collectively, an "ASSUMPTION"), subject to the conditions set forth in paragraphs paragraph (BC) and (CD) of this Section. Together with such written application, the Borrowers will pay to Lender a the reasonable review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the same is permitted or occurs.
(B) Lender shall not withhold its consent to an Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") " provided and upon the conditions that:
(i) No Event of Default shall have occurred and be continuing at the time of such Assumption;
(ii) The Borrowers shall have submitted to Lender true, correct and complete copies of any and all information and documents reasonably requested by Lender concerning the Transferee Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors and indemnitors and all related transactions;
(v) The Borrowers shall have paid all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Assumption, and shall have paid the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;
(vi) The Borrowers, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated in writing in form and substance reasonably satisfactory to Lender their readiness and ability to satisfy the conditions set forth in Subsection (C) below;
(a) The Transferee Borrower shall be a Permitted Transferee or an Affiliate of a Permitted Transferee or (b) the identity, experience and financial condition of the Transferee Borrower shall otherwise be satisfactory to Lender in its sole discretion; and
(viii) The identity and financial condition of the replacement guarantors and indemnitors shall be satisfactory to Lender.
(C) If Lender consents to the proposed Assumption, the Transferee Borrower and/or the Borrowers, as the case may be, shall promptly and as a condition to the Assumption deliver the following to Lender:
(i) The Borrowers, Transferee Borrower, the original and replacement guarantors and indemnitors shall execute and deliver any and all documents reasonably required by Lender to evidence the Transfer and Assumption of the Loan, in form and substance reasonably required by Lender and similar to those received at Closing;
(ii) Counsel to the Transferee Borrower and replacement guarantors and indemnitors shall deliver to Lender opinions in form and substance reasonably satisfactory to Lender as to such matters as Lender shall reasonably require in connection with such Assumption, which may include opinions as to substantially the same matters as were required in connection with the origination of the Loan including, without limitation, bankruptcy non-consolidation opinion;
(iii) The Borrowers shall cause to be delivered to Lender, an endorsement (relating to the change in the identity of the Borrowers and execution and delivery of the Assumption documents) to Lender's policy of title insurance in form and substance acceptable to Lender, in Lender's reasonable discretion; and
(D) The Borrowers shall deliver to Lender a payment in the amount of all remaining unpaid reasonable costs incurred by Lender in connection with the Assumption, including but not limited to, Lender's reasonable attorneys' fees and expenses, all recording fees, and all fees payable to the title company in connection with the Transfer and Assumption.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Lodgian Inc), Mezzanine Loan Agreement (Lodgian Inc)
Assumability. (A) The Borrowers shall have the right to request that Lender consent to (i) a transfer of all of the Properties to another Person (the "TRANSFEREE BORROWER") and the assumption by the Transferee Borrower of all of the Borrowers' obligations under the Loan Documents, (ii) replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower (collectively, an "ASSUMPTION"), subject to the conditions set forth in paragraphs (B) and (C) of this Section. Together with such written application, the Borrowers will pay to Lender a review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Assumption, whether or not the same is permitted or occurs.
(B) Lender shall not withhold its consent to an Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions that:
(i) No Event of Default shall have occurred and be continuing at the time of such Assumption;
(ii) The Borrowers shall have submitted to Lender true, correct and complete copies of any and all information and documents reasonably requested by Lender concerning the Transferee Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors and indemnitors and all related transactions;
(v) The Borrowers shall have paid all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Assumption, and shall have paid the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;
(vi) The Borrowers, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated in writing in form and substance reasonably satisfactory to Lender their readiness and ability to satisfy the conditions set forth in Subsection (C) below;
Appears in 1 contract
Assumability. (Aa) The Borrowers shall have So long as no Event of Default exists under the right Note, this Instrument or any other Loan Document, in the event Borrower desires to request that Lender consent to (i) a transfer of all of the Properties Property to another Person party (the "TRANSFEREE BORROWERTransferee") ), including without limitation, a Fortress Affiliate, and the assumption by have the Transferee Borrower assume all of Borrower's obligations under the Note, this Instrument and all of the Borrowers' obligations under the other Loan Documents, (ii) and replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from indemnitors and after such date and release guarantors of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower Loan Documents (collectively, an the "ASSUMPTIONTransfer and Assumption"), Borrower, subject to the terms of this Section, may make a written application to Lender for Lender's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (B) and (C) of this Section. Together with such written applicationapplication (and afterwards if requested by Lender), the Borrowers Borrower will pay submit to Lender a true, correct and complete copies of any and all information and documents of any kind requested by Lender concerning the Property, Transferee and/or Borrower, together with any review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred required by Lender, including reasonable attorneys' fees and expenses, and in Lender's sole discretion (or in the fees and expenses of event the Rating Agencies, if any, and other outside entitiesproposed Transferee is a Qualified Institutional Transferee (as defined below) or a Fortress Affiliate, in connection with considering any proposed Assumption, whether or not the same is permitted or occursLender's reasonable discretion).
(Bb) Lender shall not may grant or withhold its consent to an a Transfer and Assumption in Lender's sole and absolute discretion (any such Assumption consented to by or in the event the proposed Transferee is a Qualified Institutional Transferee, in Lender's reasonable discretion), a "PERMITTED ASSUMPTION") provided and upon the conditions may require, inter alia, that:
(i) No Event Lender receives an opinion from counsel acceptable to Lender that (x) such Transfer and Assumption shall not affect, in any way, the enforceability of Default shall have occurred the Loan Documents or the lien status, and be continuing (y) that the Transferee complies in all respects with the provisions of Section 29 of this Instrument and such other conditions concerning the organizational structure of the Transferee as were required by Lender at the time of such Assumptionthe making of the Loan;
(ii) The Borrowers shall have Borrower has submitted to Lender true, correct and complete copies of any and all information and documents reasonably of any kind requested by Lender concerning the Property, Transferee and/or Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory the Transferee, in Lender's sole judgment (or in the event the proposed Transferee is a Qualified Institutional Transferee, in Lender's reasonable judgment), has sufficient experience in managing assets similar in size and type to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its AffiliatesProperty;
(iv) The Borrowers shall have obtained in Lender's sole judgment (and delivered to or in the event the proposed Transferee is a Qualified Institutional Transferee, in Lender) a Rating Confirmation with respect to the Assumption's reasonable judgment), the Transferee Borrowerand the partners, members or shareholders of the new guarantors and indemnitors and all related transactionsTransferee are financially sound or have sufficient financial resources to manage the Property for the term of the Loan;
(v) The Borrowers shall have paid all if the Loan has been placed, or Lender plans to place the Loan, in an offering of Lender's reasonable out-of-pocket costs Securities (as defined herein), Lender receives written confirmation from the rating agencies that the Transfer and expenses Assumption will not result in connection with considering any downgrade, qualification or withdrawal of the Assumption, ratings assigned to the pool and shall have paid assets in which the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the AssumptionLoan has been placed;
(vi) The Borrowers, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated be satisfactory to Lender in writing Lender's sole discretion (or in the event the proposed Transferee is a Qualified Institutional Transferee, in Lender's reasonable discretion); and
(vii) Borrower has paid any review fee required by Lender. There shall not be a limit on the number of Transfers and Assumptions Lender will consent to, provided the requirements of this Section 32(b) are satisfied with respect to each such Transfer and Assumption. Notwithstanding anything in this Section 32(b) to the contrary, Lender shall not withhold its consent to a transfer to a Fortress Affiliate, provided Borrower shall comply with the requirements of clauses (i), (ii), (v), (vii) and, to the extent there will be a replacement guarantor or indemnitor in connection with the Transfer and Assumption, (vi) of this Section 32(b) in connection with any such transfer to a Fortress Affiliate.
(c) If Lender consents to the Transfer and Assumption, the Transferee and/or Borrower as the case may be, shall immediately deliver the following to Lender:
(i) Borrower shall deliver to Lender an assumption fee in the amount of one percent (1%) of the then unpaid principal balance of the Loan;
(ii) Borrower, Transferee, and the original and replacement guarantors and indemnitors shall execute and deliver to Lender any and all documents required by Lender, in form and substance required by Lender, in Lender's sole discretion (the "Assumption Documents") and the original guarantors shall be released with respect to any obligations under the Loan Documents arising on or after the date of the closing of the Transfer and Assumption; and
(iii) Borrower shall cause to be delivered to Lender, an endorsement to the mortgagee policy of title insurance then insuring the lien created by this Instrument in form and substance reasonably satisfactory acceptable to Lender their readiness (the "Endorsement").
(d) Borrower shall pay to Lender on demand all reasonable actual costs and ability expenses incurred by Lender in connection with any proposed or actual Transfer and Assumption (irrespective of whether or not the same is consented to satisfy or occurs), including without limitation recording costs, title insurance endorsement premiums, and the conditions set forth reasonable fees and expenses of attorneys, accountants and rating agencies. At Lender's option, payment of such costs and expenses shall be a condition to Lender's consent.
(e) Notwithstanding anything contained in Subsection this Section to the contrary, except based on Lender's written agreement to the Transfer and Assumption and Borrower's and Transferee's compliance with all of the terms and provisions of this Section, the terms and provisions of this Section shall in no way amend or modify the terms and provisions contained in Section 15 of this Instrument.
(f) Notwithstanding anything to the contrary in clause (i) of Section 32(c) above, Lender shall waive the assumption fee in connection with the first Transfer and Assumption provided the Transferee under such first Transfer and Assumption is a Qualified Institutional Transferee (as defined herein) or a Fortress Affiliate. As used herein, a "Qualified Institutional Transferee" shall mean (1) a real estate investment trust, real estate opportunity fund, hedge fund, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan or an institution substantially similar to any of the foregoing (each an "Institution") that (A) together with all entities controlled by or under common control with such Institution, owns or has under management in excess of 2,000,000 square feet of office or industrial space (not including the Property), (B) has a Net Worth (as defined herein) of at least $200,000,000.00 and (C) below;has at least ten (10) years' experience, and is regularly engaged in, owning and operating commercial office properties similar to the Property or (2) an entity wholly owned and controlled by an entity satisfying the requirements of clause (1) above. "Net Worth" shall mean the fair market value of an Institution's total assets including all interests in properties owned directly or indirectly by such Institution (excluding the Property), less all liabilities, as determined by Lender in its reasonable discretion based on the financial statements delivered to Lender in connection with the proposed Transfer and Assumption. The term "liabilities" shall include, without limitation, (i) indebtedness secured by liens on assets with respect to which Net Worth is being computed, (ii) deferred liabilities, and (iii) obligations under leases which have been capitalized. The waiver described in this Section 32(f) shall only be available in connection with the first Transfer and Assumption and shall not be available (and the provisions contained in this Section 32(f) shall be null and void) with respect to any subsequent Transfer and Assumption, regardless of whether or not the assumption fee was waived by Lender in connection with the first Transfer and Assumption.
Appears in 1 contract
Samples: Mortgage, Assignment of Rents and Security Agreement (Gladstone Commercial Corp)
Assumability. (A) The Borrowers Borrower shall have the right to request that Lender consent to (i) a transfer of all of the Properties Collateral to another Person (the "TRANSFEREE BORROWER") and the assumption by the Transferee Borrower of all of the Borrowers' Borrower's obligations under the Loan Documents, (ii) replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from and after such date and release of the Borrowers Borrower and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Mortgage Borrowers with pledgors new owners of the ownership interests Properties, all in connection with an assumption completed in accordance with Section 11.3 of the Transferee Borrower Mortgage Loan Agreement (collectively, an "ASSUMPTION"), subject to the conditions set forth in paragraphs (B) and (C) of this Section. Together with such written application, the Borrowers Borrower will pay to Lender a review fee of $10,000. The Borrowers Borrower also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Assumption, whether or not the same is permitted or occurs.
(B) Lender shall not withhold its consent to an Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") " provided and upon the conditions that:
(i) No Event of Default shall have occurred and be continuing at the time of such Assumption;
(ii) The Borrowers Borrower shall have submitted to Lender true, correct and complete copies of any and all information and documents reasonably requested by Lender concerning the Transferee Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers Borrower shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors and indemnitors and all related transactions, if required in connection with any Securitzation of the Mortgage Loan;
(v) The Borrowers Borrower shall have paid all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Assumption, and shall have paid the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;
(vi) The BorrowersBorrower, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated in writing in form and substance reasonably satisfactory to Lender their readiness and ability to satisfy the conditions set forth in Subsection (C) below;
(a) The Transferee Borrower shall be a Permitted Transferee or an Affiliate of a Permitted Transferee or (b) the identity, experience and financial condition of the Transferee Borrower shall otherwise be satisfactory to Lender in its reasonable discretion;
(viii) The identity and financial condition of the replacement guarantors and indemnitors shall be satisfactory to Lender; and
(ix) The Borrower shall have delivered to Lender evidence reasonably satisfactory to Lender that the consent of the Mortgage Lender has been obtained and each of the other terms and conditions applicable to the transfer of the Properties and assumption of the Mortgage Loan under Section 11.3 of the Mortgage Loan Agreement has been satisfied.
(C) If Lender consents to the proposed Assumption, the Transferee Borrower and/or the Borrower, as the case may be, shall promptly and as a condition to the Assumption deliver the following to Lender:
(i) The Borrower, the Transferee Borrower, the original and replacement guarantors and indemnitors shall execute and deliver any and all documents reasonably required by Lender to evidence the Transfer and Assumption of the Loan, in form and substance reasonably required by Lender and similar to those received at Closing;
(ii) Counsel to the Transferee Borrower and replacement guarantors and indemnitors shall deliver to Lender opinions in form and substance reasonably satisfactory to Lender as to such matters as Lender shall reasonably require in connection with such Assumption, which may include opinions as to substantially the same matters as were required in connection with the origination of the Loan including, without limitation, a bankruptcy non-consolidation opinion;
(iii) The Borrower shall cause to be delivered to Lender, an endorsement (relating to the change in the identity of the Borrower and execution and delivery of the Assumption documents) to Lender's policy of title insurance in form and substance acceptable to Lender, in Lender's reasonable discretion; and
(iv) The Borrower shall deliver to Lender a payment in the amount of all remaining unpaid reasonable costs incurred by Lender in connection with the Assumption, including but not limited to Lender's reasonable attorneys' fees and expenses, all recording fees, and all fees payable to the title company in connection with the Transfer and Assumption.
Appears in 1 contract
Assumability. (A) The Borrowers shall have In the right event that the Borrower desires to request that Lender consent to (i) a transfer of all of the Properties Property to another Person party (the "TRANSFEREE BORROWER"“Transferee Borrower”) and the assumption by have the Transferee Borrower of assume all of the Borrowers' Borrower’s obligations under the Loan Documents, (ii) and have replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of Guarantor under the Guarantors arising Loan Documents from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower transfer (collectively, an "ASSUMPTION"a “Transfer and Assumption”), the Borrower may make a written application to Lender for Lender’s consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (B) and (C) of this Section. Together with such written application, the Borrowers will Borrower shall pay to Lender a the reasonable review fee of $10,000then required by Lender. The Borrowers Borrower also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' ’ fees and expenses, and including the fees and expenses of the Rating Agencies, if any, Agencies and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the same is permitted or occurs.
(B) . Lender shall not may grant or withhold its consent to an a Transfer and Assumption (in its sole and absolute discretion. Completion of any Transfer and Assumption shall be subject to such Assumption consented conditions as Lender may determine to by Lenderimpose, a "PERMITTED ASSUMPTION") provided and upon shall in any event be subject to satisfaction of the conditions thatfollowing conditions:
(i) No Default or Event of Default shall have occurred and be continuing at the time of such Assumptioncontinuing;
(ii) The Borrowers Borrower shall have submitted to Lender true, correct and complete copies of any and all information and documents reasonably requested by Lender concerning the Property, the Transferee Borrower, Borrower and any replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lenderindemnitors;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers Borrower or Transferee Borrower shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors Transfer and indemnitors Assumption and all related transactions;
(v) The Borrowers shall have paid all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Assumptionidentity, experience, and shall have paid the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;
(vi) The Borrowers, financial condition of the Transferee Borrower, Borrower and the replacement guarantors and indemnitors shall have indicated be acceptable to Lender in writing its sole and absolute discretion;
(vi) Borrower or Transferee Borrower shall deliver to Lender at the closing of the Transfer and Assumption an assumption fee in the amount of one percent (1%) of the then unpaid principal balance of the Loan;
(vii) Borrower, Transferee Borrower, the original and replacement guarantors and indemnitors shall execute and deliver such documents as Lender may require, in form and substance reasonably satisfactory to Lender, to evidence the Transfer and Assumption, including replacement guaranties and indemnities and Loan Document modifications;
(viii) Counsel to the Transferee Borrower and replacement guarantors and indemnitors shall deliver to Lender opinions in form and substance satisfactory to Lender their readiness as to substantially the same matters for which opinions were required in connection with the origination of the Loan (and ability as to satisfy such additional matters as the conditions set forth Lender and Rating Agencies may require), including, without limitation, a bankruptcy non-consolidation opinion;
(ix) Borrower or Transferee Borrower shall cause to be delivered to Lender, an endorsement to Lender’s policy of title insurance in Subsection form and substance acceptable to Lender, in Lender’s reasonable discretion, relating to, among other things, the change in the identity of the vestee and execution and delivery of the Transfer and Assumption documents and the continuing priority of the Lender’s Mortgage and the continuing effect of the title insurance and all endorsements thereto; and
(Cx) below;Borrower or Transferee Borrower shall pay to Lender all reasonable costs and expenses incurred by Lender in connection with the Transfer and Assumption, including but not limited to, Lender’s reasonable attorneys’ fees and expenses, all recording fees, Rating Agency fees and expenses, and all fees payable to the title company in connection with the Transfer and Assumption.
Appears in 1 contract
Assumability. (Aa) The Borrowers shall have In the right event Borrower and Lessee desire to request that Lender consent to (i) a transfer of all of their respective interests in the Properties (but not less than all) to another Person party (the "TRANSFEREE BORROWER") and the assumption by have (i) the Transferee Borrower of become a party to the Note and assume all of the Borrowers' Borrower's and Lessee's obligations under the Loan Documents and the Lease Documents, (ii) replacement of Guarantor with new guarantors indemnitors acceptable to Noteholder in its sole discretion execute and indemnitors who shall assume all of the obligations of the Guarantors arising from deliver to Noteholder indemnities, in form and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date substance acceptable to Noteholder, and (iii) the replacement of the Mezzanine Borrowers with pledgors acceptable to Noteholder in its sole discretion pledge all of the ownership interests in the Transferee Borrower (collectively, an a "TRANSFER AND ASSUMPTION"), Borrower may make a written application to Noteholder for Noteholder's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (Bb) and (Cc) of this Section. Together with such written application, the Borrowers Lessee will pay to Lender a Noteholder the reasonable review fee of $10,000then required by Noteholder. The Borrowers Lessee also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by LenderNoteholder, including reasonable attorneys' fees and expenses, and including the fees and expenses of the Rating Agencies, if any, Agencies and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the same is permitted or occurs. No Transfer and Assumption shall be permitted prior to the Defeasance Lockout Expiration Date (as defined in the Note).
(Bb) Lender Noteholder shall not unreasonably withhold its consent to an a one time Transfer and Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") after the Defeasance Lockout Expiration Date provided and upon the conditions that:
(i) No Default or Event of Default shall have has occurred and be continuing at the time of such Assumptionis continuing;
(ii) The Borrowers shall have Lessee has submitted to Lender Noteholder true, correct and complete copies of any and all information and documents reasonably of any kind requested by Lender Noteholder concerning the Property or Properties to be transferred, Transferee Borrower, the replacement guarantors indemnitors, and indemnitors pledgors, and all of such information and documents shall be reasonably acceptable to LenderBorrower;
(iii) Evidence reasonably satisfactory to Lender shall have Noteholder has been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender Noteholder comply and will comply with Article IXSections 5.19 and 5.20 hereof, as those provisions may be modified by Lender Noteholder taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers If the Loan, by itself or together with other loans, has been the subject of a Securitization, then Noteholder shall have obtained (received confirmation from all applicable Rating Agencies that the Transfer and delivered to Lender) Assumption will not result in a Rating Confirmation with respect to downgrade, qualification, or withdrawal of any rating then if effect for the Assumption, the Transferee Borrower, the new guarantors and indemnitors and all related transactionssecurities issued in connection therewith;
(v) The Borrowers If the Loan has not been the subject of a Securitization, then Noteholder shall have determined in its reasonable discretion (taking into consideration such factors as Noteholder may determine, including the attributes of the loan pool in which the Loan might reasonably be expected to be securitized) that no rating for any securities that would be issued in connection with such Securitization will be diminished, qualified or withheld by reason of the Transfer and Assumption;
(vi) Lessee shall have paid all of LenderNoteholder's reasonable out-of-pocket costs and expenses in connection with considering the Transfer and Assumption, and shall have paid the amount reasonably requested by Lender Noteholder as a deposit against LenderNoteholder's reasonable costs and expenses in connection with the effecting the Transfer and Assumption;
(vivii) The BorrowersLessee, the Transferee Borrower, and the replacement guarantors guarantors, indemnitors, and indemnitors pledgors shall have indicated in writing in form and substance reasonably satisfactory to Lender Noteholder their readiness and ability to satisfy the conditions set forth in Subsection Paragraph (Cc) below;
(viii) The identity, experience, and financial condition of the Transferee Borrower and the replacement guarantors, indemnitors, and pledgors shall be satisfactory to Noteholder; and
(ix) If the Surety Bond is then still in effect, the Transferee Borrower shall be a corporation, partnership, limited liability company or other business entity organized in the State of Illinois.
(c) If Noteholder consents to the Transfer and Assumption, the Transferee Borrower and/or Lessee as the case may be, shall deliver the following to Noteholder on or before the effective date of such Transfer and Assumption.
(i) Lessee shall deliver to Noteholder an assumption fee (the "Assumption Fee") equal to 1.0% (the "Assumption Fee Percentage") of the then unpaid principal balance of the Loan. Notwithstanding the foregoing, the Assumption Fee Percentage shall be .5% if the Transferee Borrower is Alterra or an Affiliate of Alterra;
(ii) Borrower (at Lessee's expense), Lessee, Transferee Borrower, the original and replacement guarantors and indemnitors, and the original and replacement pledgors shall execute and deliver to Noteholder any and all documents required by Noteholder, in form and substance required by Noteholder, in Noteholder's sole discretion;
(iii) Counsel to the Transferee Borrower and replacement guarantors, indemnitors, and pledgors shall deliver to Noteholder opinions in form and substance satisfactory to Noteholder as to such matters as Noteholder shall require, which may include opinions as to substantially the same matters as were required in connection with the origination of the Loan;
(iv) Lessee shall cause to be delivered to Noteholder, an endorsement (relating to the change in the identity of the vestee and execution and delivery of the Transfer and Assumption documents) to Noteholder's Title Policies in form and substance acceptable to Noteholder in Noteholder's reasonable discretion (the "ENDORSEMENT"); and
(v) Lessee shall deliver to Noteholder a payment in the amount of all remaining unpaid costs incurred by Lender in connection with the Transfer and Assumption, including but not limited to, Lender's attorneys fees and expenses, all recording fees, and all fees payable to the title company for the delivery to Lender of the Endorsement.
Appears in 1 contract
Assumability. (Aa) The Borrowers shall have In the right event Borrower and Lessee desire to request that Lender consent to (i) a transfer of all of their respective interests in the Properties (but not less than all) to another Person party (the "TRANSFEREE BORROWER") and the assumption by have (i) the Transferee Borrower of become a party to the Note and the Surety Bond and assume all of Borrower's and Lessee's obligations respectively, as the Borrowers' obligations case may be, under the Loan DocumentsTransaction Documents (including, without limitation, this Agreement), (ii) replacement of Guarantor with new guarantors indemnitors acceptable to Surety in its sole discretion execute and indemnitors who shall assume all of the obligations of the Guarantors arising from deliver to Surety indemnities, in form and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date substance acceptable to Surety, and (iii) the replacement of the Mezzanine Borrowers with pledgors acceptable to Surety in its sole discretion pledge all of the ownership interests in the Transferee Borrower (collectively, an a "TRANSFER AND ASSUMPTION"), Borrower may make a written application to Surety for Surety's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (Bb) and (Cc) of this Section. Together with such written application, the Borrowers Lessee will pay to Lender a Surety the reasonable review fee of $10,000then required by Surety. The Borrowers Lessee also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by LenderSurety, including reasonable attorneys' fees and 61 62 expenses, and including the fees and expenses of the Rating Agencies, if any, Agencies and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the same is permitted or occurs. No Transfer and Assumption shall be permitted prior to the Defeasance Lockout Expiration Date (as defined in the Note).
(Bb) Lender Surety shall not unreasonably withhold its consent to an a one time Transfer and Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") after the Defeasance Lockout Expiration Date provided and upon the conditions that:
(i) No Default or Event of Default shall have has occurred and be continuing at the time of such Assumptionis continuing;
(ii) The Borrowers shall have Lessee has submitted to Lender Surety true, correct and complete copies of any and all information and documents reasonably of any kind requested by Lender Surety concerning the Property or Properties to be transferred, Transferee Borrower, the replacement guarantors indemnitors, and indemnitors pledgors, and all of such information and documents shall be reasonably acceptable to LenderBorrower;
(iii) Evidence reasonably satisfactory to Lender shall have Surety has been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender Surety comply and will comply with Article IXSections 6.19 and 6.20 hereof, as those provisions may be modified by Lender Surety taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers If the Loan, by itself or together with other loans, has been the subject of a Securitization, then Surety shall have obtained (received confirmation from all applicable Rating Agencies that the Transfer and delivered to Lender) Assumption will not result in a Rating Confirmation with respect to downgrade, qualification, or withdrawal of any rating then if effect for the Assumption, the Transferee Borrower, the new guarantors and indemnitors and all related transactionssecurities issued in connection therewith;
(v) The Borrowers If the Loan has not been the subject of a Securitization, then Surety shall have determined in its reasonable discretion (taking into consideration such factors as Surety may determine, including the attributes of the loan pool in which the Loan might reasonably be expected to be securitized) that no rating for any securities that would be issued in connection with such Securitization will be diminished, qualified or withheld by reason of the Transfer and Assumption;
(vi) Lessee shall have paid all of LenderSurety's reasonable out-of-pocket costs and expenses in connection with considering the Transfer and Assumption, and shall have paid the amount reasonably requested by Lender Surety as a deposit against LenderSurety's reasonable costs and expenses in connection with the effecting the Transfer and Assumption;
(vivii) The BorrowersLessee, the Transferee Borrower, and the replacement guarantors guarantors, indemnitors, and indemnitors pledgors shall have indicated in writing in form and substance reasonably satisfactory to Lender Surety their readiness and ability to satisfy the conditions set forth in Subsection Paragraph (Cc) below;
(viii) The identity, experience, and financial condition of the Transferee
Appears in 1 contract
Assumability. (A) The Borrowers shall have In the right event Borrower desires to request that Lender consent to (i) a transfer of all of the Properties to another Person party (the "TRANSFEREE BORROWERTransferee Borrower") and the assumption by have the Transferee Borrower of ------------------- assume all of the Borrowers' Borrower's obligations under the Loan Documents, (ii) and have replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from indemnitors and after such date and release guarantors of the Borrowers Loan Documents, and Guarantor from obligations arising from and after such date and (iii) the have replacement of the Mezzanine Borrowers with pledgors pledge all of the ownership interests in the Transferee Borrower (collectively, an a "ASSUMPTIONTransfer and Assumption"), Borrower may make a written application to Lender ----------------------- for Lender's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (B) and (C) of this Section. Together with such written application, the Borrowers Borrower will pay to Lender a the reasonable review fee of $10,000then required by Lender. The Borrowers Borrower also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and including the fees and expenses of the Rating Agencies, if any, Agencies and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the same is permitted or occurs.
(B) Lender shall not unreasonably withhold its consent to an a Transfer and Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions that:
(i) No Event of Default shall have occurred and be continuing at the time of such Assumptioncontinuing;
(ii) The Borrowers Borrower shall have submitted to Lender true, correct and complete copies of any and all information and documents of any kind reasonably requested by Lender concerning the Properties, Transferee Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to LenderBorrower;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers Borrower shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors Transfer and indemnitors Assumption and all related transactions;
(v) The Borrowers Borrower shall have paid (a) Lender a processing fee for such Transfer and Assumption of $50,000, (b) all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Assumption, Transfer and shall have paid Assumption and (c) the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Transfer and Assumption;
(vi) The BorrowersBorrower, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated in writing in form and substance reasonably satisfactory to Lender their readiness and ability to satisfy the conditions set forth in Subsection (C) below; and
(vii) The identity, experience, and financial condition of the Transferee Borrower and the replacement guarantors and indemnitors shall be satisfactory to Lender in its sole discretion.
(C) If Lender consents to the Transfer and Assumption, the Transferee Borrower and/or Borrower, as the case may be, shall immediately deliver the following to Lender:
(i) Borrower, Transferee Borrower, the original and replacement guarantors and indemnitors shall execute and deliver any and all documents reasonably required by Lender, in form and substance reasonably required by Lender;
(ii) Counsel to the Transferee Borrower and replacement guarantors and indemnitors shall deliver to Lender opinions in form and substance reasonably satisfactory to Lender as to such matters as Lender shall reasonably require and the Rating Agencies shall require, which may include opinions as to substantially the same matters as were required in connection with the origination of the Loan including, without limitation, a bankruptcy non-consolidation opinion;
(iii) Borrower shall cause to be delivered to Lender, an endorsement (relating to the change in the identity of the vestee and execution and delivery of the Transfer and Assumption documents) to Lender's policy of title insurance in form and substance acceptable to Lender, in Lender's reasonable discretion; and
(iv) Borrower shall deliver to Lender a payment in the amount of all remaining unpaid costs incurred by Lender in connection with the Transfer and Assumption, including but not limited to, Lender's attorneys fees and expenses, all recording fees, and all fees payable to the title company in connection with the Transfer and Assumption.
(D) Upon satisfaction of the conditions set forth in this Section 11.3 and consummation of the closing of the Transfer and Assumption, Lender shall release the Borrower Parties from any liabilities or obligations thereafter accruing under the Loan Documents other than any liabilities or obligations arising under the Guaranty or Environmental Indemnity to the extent that (i) the acts, omissions, facts, events or circumstances giving rise to such liabilities or obligations occurred or existed prior to the effective date of such Transfer and Assumption and (ii) such liabilities or obligations have not been assumed by the Transferee Borrower or replacement guarantor.
Appears in 1 contract
Assumability. (Aa) The Borrowers shall have the right to request that Lender consent to So long as (i) Borrower is not in default under any of the terms of the Note, this Instrument or any other Loan Document, and (ii) no situation exists which with the passage of time or the giving of notice or both would constitute a default under the Note, this Instrument or any other Loan Document, in the event Borrower desires to transfer of all of the Properties Property to another Person party (the "TRANSFEREE BORROWER"“Transferee”) and the assumption by have the Transferee Borrower assume all of Borrower’s obligations under the Note, this Instrument and all of the Borrowers' obligations under the other Loan Documents, (ii) replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower Documents (collectively, an "ASSUMPTION"the “Transfer and Assumption”), Borrower, subject to the terms of this paragraph, may make a written application to Lender for Lender’s consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs subparagraph (B) and (Cb) of this Sectionparagraph 35. Together with such written applicationapplication (and afterwards if requested by Lender), the Borrowers Borrower will pay submit to Lender a true, correct and complete copies of any and all information and documents of any kind requested by Lender concerning the Property, Transferee and/or Borrower, together with any review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred required by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Assumption, whether or not the same is permitted or occursLender’s sole discretion.
(Bb) Lender shall not unreasonably withhold its consent to an a Transfer and Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions condition that:
(i) No Event Lender receives an opinion from counsel acceptable to Lender that (x) such Transfer and Assumption shall not affect, in any way, the enforceability of Default shall have occurred the Loan Documents or the lien status, and be continuing (y) that the Transferee complies in all respects with the provisions of paragraph 31(n) and paragraph 32(l) of this Instrument and such other conditions concerning the organization structure of the Transferee as were required by Lender at the time of such Assumptionthe making of the Loan;
(ii) The Borrowers shall have Borrower has submitted to Lender true, correct and complete copies of any and all information and documents reasonably of any kind requested by Lender concerning the Property, Transferee and/or Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory the Transferee, in Lender’s sole judgment, has sufficient experience in managing assets similar in size and type to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its AffiliatesProperty;
(iv) The Borrowers shall have obtained (and delivered to in Lender) a Rating Confirmation with respect to the Assumption’s sole judgment, the Transferee Borrowerand the partners, members or shareholders of the new guarantors and indemnitors and all related transactionsTransferee are financially sound or have sufficient financial resources to manage the Property for the term of the Loan;
(v) The Borrowers shall have paid all the Loan has been placed, or Lender plans to place the Loan, in an offering of Lender's reasonable out-of-pocket costs Securities (as defined in paragraph 37) and expenses Lender receives written confirmation from the rating agencies that the Transfer and Assumption will not result in connection with considering any downgrade, qualification or withdrawal of the Assumption, ratings assigned to the pool and shall have paid assets in which the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;Loan has been placed; and
(vi) The BorrowersBorrower has paid any review fee required by Lender.
(c) if Lender consents to the Transfer and Assumption, the Transferee Borrowerand/or Borrower as the case may be, shall deliver the following to Lender:
(i) Borrower shall deliver to Lender an assumption fee in the amount of one percent (1%) of the then unpaid principal balance of the Loan;
(ii) Borrower and the replacement guarantors Transferee shall execute and indemnitors shall have indicated in writing deliver to Lender any and all documents required by Lender, in form and substance reasonably satisfactory required by Lender, in Lender’s sole discretion (the “Assumption Documents”);
(iii) Borrower shall cause to be delivered to Lender, an endorsement to the mortgagee policy of title insurance then insuring the lien created by this Instrument in form and substance acceptable to Lender, in Lender’s sole discretion (the “Endorsement”); and
(iv) Borrower shall deliver to Lender their readiness a payment in the amount of all costs incurred by Lender in connection with the Transfer and ability Assumption, including but not limited to, Lender’s attorneys fees and expenses, all recording fees for the Assumption Documents, and all fees payable to satisfy the conditions set forth title company for the delivery to Lender of the Endorsement.
(d) Notwithstanding anything contained in Subsection this paragraph to the contrary, (Cx) below;under no circumstances may the Property and Loan be transferred and assumed by any party under the terms of this paragraph more than once during the entire term of the Loan and (y) except based on Lender’s written agreement to the Transfer and Assumption and Borrower’s and Transferee’s compliance with all of the terms and provisions of this paragraph, the terms and provisions of this paragraph shall in no way amend or modify the terms and provisions contained in paragraph 19 of this Instrument.
Appears in 1 contract
Assumability. (Aa) The Borrowers shall have the right to request that Lender consent to So long as (i) Borrower is not in default under any of the terms of the Note, this Instrument or any other Loan Document, and (ii) no situation exists which with the passage of time or the giving of notice or both would constitute a default under the Note, this Instrument or any other Loan Document, in the event Borrower desires to transfer of all of the Properties Property to another Person party (the "TRANSFEREE BORROWERTransferee") and the assumption by have the Transferee Borrower assume all of Borrower's obligations under the Note, this instrument and all of the Borrowers' obligations under the other Loan Documents, (ii) replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower Documents (collectively, an the "ASSUMPTIONTransfer and Assumption"), Borrower, subject to the terms of this paragraph, may make a written application to Lender for Lender's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs subparagraph (B) and (Cb) of this Sectionparagraph 35. Together with such written applicationapplication (and afterwards if requested by Lender), the Borrowers Borrower will pay submit to Lender true, correct and complete copies of any and all information and documents of any kind requested by Lender concerning the Property, Transferee and/or Borrower, together with a review fee required by Lender in the amount of one thousand five hundred and 00/100 ($10,000. The Borrowers also shall pay on demand all of 1,500.00) (the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Assumption, whether or not the same is permitted or occurs"Review Fee").
(Bb) Lender shall not unreasonably withhold its consent to an a Transfer and Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions condition that:
(i) No Event Lender receives an opinion from counsel acceptable to Lender that (x) such Transfer and Assumption shall not affect, in any way, the enforceability of Default shall have occurred the Loan Documents or the lien status, and be continuing (y) that the Transferee complies in all respects with the provisions of paragraph 32(n) and paragraph 32(l) of this instrument and such other conditions concerning the organizational structure of the Transferee as were required by Lender at the time of such Assumptionthe making of the Loan;
(ii) The Borrowers shall have Borrower has submitted to Lender true, correct and complete copies of any and all information and documents reasonably of any kind requested by Lender concerning the Property, Transferee and/or Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory the Transferee, in Lender's sole judgment, has sufficient experience in managing assets similar in size and type to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its AffiliatesProperty;
(iv) The Borrowers shall have obtained (and delivered to in Lender) a Rating Confirmation with respect to the Assumption's sole judgment, the Transferee Borrowerand the partners, members or shareholders of the new guarantors and indemnitors and all related transactionsTransferee are financially sound or have sufficient financial resources to manage the Property for the term of the Loan;
(v) The Borrowers shall have paid all the Loan has been placed, or Lender plans to place the Loan, in an offering of Lender's reasonable out-of-pocket costs Securities (as defined in paragraph 37) and expenses Lender receives written confirmation from the rating agencies that the Transfer and Assumption will not result in connection with considering any downgrade, qualification or withdrawal of the Assumption, ratings assigned to the pool and shall have paid assets in which the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;Loan has been placed; and
(vi) The BorrowersBorrower has paid the Review Fee required by Lender.
(c) If Lender consents to the Transfer and Assumption, the Transferee Borrowerand/or Borrower as the case may be, shall deliver the following to Lender:
(i) Borrower shall deliver to Lender an assumption fee in the amount of one percent (1%) of the then unpaid principal balance of the Loan;
(ii) Borrower and the replacement guarantors Transferee shall execute and indemnitors shall have indicated in writing deliver to Lender any and all documents required by Lender, in form and substance reasonably satisfactory required by Lender, in Lender's sole discretion (the "Assumption Documents");
(iii) Borrower shall cause to be delivered to Lender, an endorsement to the mortgagee policy of title insurance then insuring the lien created by this instrument in form and substance acceptable to Lender, in Lender's sole discretion (the "Endorsement"); and
(iv) Borrower shall deliver to Lender their readiness a payment in the amount of all costs incurred by Lender in connection with the Transfer and ability Assumption, including but not limited to, Lender's attorneys fees and expenses, all recording fees for the Assumption Documents, and all fees payable to satisfy the conditions set forth title company for the delivery to Lender of the Endorsement.
(d) Notwithstanding anything contained in Subsection this paragraph to the contrary, (Cx) below;under no circumstances may the Property and Loan be transferred and assumed by any party under the terms of this paragraph more than once during the entire term of the Loan and (y) except based on Lender's written agreement to the Transfer and Assumption and Borrower's and Transferee's compliance with all of the terms and provisions of this paragraph, the terms and provisions of this paragraph shall in no way amend or modify the terms and provisions contained in paragraph 19 of this instrument.
Appears in 1 contract
Assumability. (A) The Borrowers shall have In the right event Borrower desires to request that Lender consent to (i) a transfer of all of the Properties Property to another Person party (the "TRANSFEREE BORROWERTransferee Borrower") and the assumption by have the Transferee Borrower of assume all of the Borrowers' Borrower's obligations under the Loan Documents, (ii) and have replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from indemnitors and after such date and release guarantors of the Borrowers Loan Documents, and Guarantor from obligations arising from and after such date and (iii) the have replacement of the Mezzanine Borrowers with pledgors pledge all of the ownership interests in the Transferee Borrower (collectively, an a "ASSUMPTIONTransfer and Assumption"), Borrower may make a written application to Lender for Lender's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (B) and (C) of this Section. Together with such written application, the Borrowers Borrower will pay to Lender a the reasonable review fee of $10,000then required by Lender. The Borrowers Borrower also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and including the fees and expenses of the Rating Agencies, if any, Agencies and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the same is permitted or occurs.
(B) Lender shall not unreasonably withhold its consent to an a Transfer and Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions that:
(i) No Event of Default shall have occurred and be continuing at the time of such Assumptioncontinuing;
(ii) The Borrowers Borrower shall have submitted to Lender true, correct and complete copies of any and all information and documents of any kind reasonably requested by Lender concerning the Property, Transferee Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to LenderBorrower;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers Borrower shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors Transfer and indemnitors Assumption and all related transactions;
(v) The Borrowers Borrower shall have paid all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Transfer and Assumption, and shall have paid the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Transfer and Assumption;
(vi) The BorrowersBorrower, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated in writing in form and substance reasonably satisfactory to Lender their readiness and ability to satisfy the conditions set forth in Subsection (C) below; and
(vii) The identity, experience, and financial condition of the Transferee Borrower and the replacement guarantors and indemnitors shall be satisfactory to Lender in its sole discretion.
(C) If Lender consents to the Transfer and Assumption, the Transferee Borrower and/or Borrower, as the case may be, shall immediately deliver the following to Lender:
(i) Borrower shall deliver to Lender an assumption fee in the amount of one-half of one percent (.50%) of the then unpaid principal balance of the Loan;
(ii) Borrower, Transferee Borrower, the original and replacement guarantors and indemnitors shall execute and deliver any and all documents reasonably required by Lender, in form and substance reasonably required by Lender;
(iii) Counsel to the Transferee Borrower and replacement guarantors and indemnitors shall deliver to Lender opinions in form and substance satisfactory to Lender as to such matters as Lender and the Rating Agencies shall reasonably require, which may include opinions as to substantially the same matters as were required in connection with the origination of the Loan including, without limitation, a bankruptcy non-consolidation opinion;
(iv) Borrower shall cause to be delivered to Lender, an endorsement (relating to the change in the identity of the vestee and execution and delivery of the Transfer and Assumption documents) to Lender's policy of title insurance in form and substance acceptable to Lender, in Lender's reasonable discretion; and
(v) Borrower shall deliver to Lender a payment in the amount of all remaining unpaid costs incurred by Lender in connection with the Transfer and Assumption, including but not limited to, Lender's attorneys fees and expenses, all recording fees, and all fees payable to the title company in connection with the Transfer and Assumption.
Appears in 1 contract
Samples: Loan and Security Agreement (HRPT Properties Trust)
Assumability. (Aa) The Borrowers shall have the right to request that Lender consent to So long as (i) Borrower is not in default under any of the terms of the Note, this Instrument or any other Loan Document, and (ii) no situation exists which with the passage of time or the giving of notice or both would constitute a default under the Note, this Instrument or any other Loan Document, in the event Borrower desires to transfer of all of the Properties Property to another Person party (the "TRANSFEREE BORROWERTransferee") and the assumption by have the Transferee Borrower assume all of Borrower's obligations under the Note, this Instrument and all of the Borrowers' obligations under the other Loan Documents, (ii) replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower Documents (collectively, an the "ASSUMPTIONTransfer and Assumption"), Borrower, subject to the terms of this paragraph, may make a written application to Lender for Lender's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs subparagraph (B) and (Cb) of this Sectionparagraph 35. Together with such written applicationapplication (and afterwards if requested by Lender), the Borrowers Borrower will pay submit to Lender a true, correct and complete copies of any and all information and documents of any kind requested by Lender concerning the Property, Transferee and/or Borrower, together with any review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred required by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Assumption, whether or not the same is permitted or occursLender's sole discretion.
(Bb) Lender shall not unreasonably withhold its consent to an a Transfer and Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions condition that:
(i) No Event Lender receives an opinion from counsel acceptable to Lender that (x) such Transfer and Assumption shall not affect, in any way, the enforceability of Default shall have occurred the Loan Documents or the lien status, and be continuing (y) that the Transferee complies in all respects with the provisions of paragraph 31(n) and paragraph 32(l) of this Instrument and such other conditions concerning the organizational structure of the Transferee as were required by Lender at the time of such Assumptionthe making of the Loan;
(ii) The Borrowers shall have Borrower has submitted to Lender true, correct and complete copies of any and all information and documents reasonably of any kind requested by Lender concerning the Property, Transferee and/or Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory the Transferee, in Lender's sole judgment, has sufficient experience in managing assets similar in size and type to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its AffiliatesProperty;
(iv) The Borrowers shall have obtained (and delivered to in Lender) a Rating Confirmation with respect to the Assumption's sole judgment, the Transferee Borrowerand the partners, members or shareholders of the new guarantors and indemnitors and all related transactionsTransferee are financially sound or have sufficient financial resources to manage the Property for the term of the Loan;
(v) The Borrowers shall have paid all the Loan has been placed, or Lender plans to place the Loan, in an offering of Lender's reasonable out-of-pocket costs Securities (as defined in paragraph 37) and expenses Lender receives written confirmation from the rating agencies that the Transfer and Assumption will not result in connection with considering any downgrade, qualification or withdrawal of the Assumption, ratings assigned to the pool and shall have paid assets in which the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;Loan has been placed; and
(vi) The BorrowersBorrower has paid any review fee required by Lender.
(c) If Lender consents to the Transfer and Assumption, the Transferee Borrowerand/or Borrower as the case may be, shall deliver the following to Lender:
(i) Borrower shall deliver to Lender an assumption fee in the amount of one percent (1%) of the then unpaid principal balance of the Loan;
(ii) Borrower and the replacement guarantors Transferee shall execute and indemnitors shall have indicated in writing deliver to Lender any and all documents required by Lender, in form and substance reasonably satisfactory required by Lender, in Lender's sole discretion (the "Assumption Documents");
(iii) Borrower shall cause to be delivered to Lender, an endorsement to the mortgagee policy of title insurance then insuring the lien created by this Instrument in form and substance acceptable to Lender, in Lender's sole discretion (the "Endorsement"); and
(iv) Borrower shall deliver to Lender their readiness a payment in the amount of all costs incurred by Lender in connection with the Transfer and ability Assumption, including but not limited to, Lender's attorneys fees and expenses, all recording fees for the Assumption Documents, and all fees payable to satisfy the conditions set forth title company for the delivery to Lender of the Endorsement.
(d) Notwithstanding anything contained in Subsection this paragraph to the contrary, (Cx) below;under no circumstances may the Property and Loan be transferred and assumed by any party under the terms of this paragraph more than once during the entire term of the Loan and (y) except based on Lender's written agreement to the Transfer and Assumption and Borrower's and Transferee's compliance with all of the terms and provisions of this paragraph, the terms and provisions of this paragraph shall in no way amend or modify the terms and provisions contained in paragraph 19 of this Instrument.
Appears in 1 contract
Samples: Mortgage, Assignment of Rents and Security Agreement (Microware Systems Corp)
Assumability. (A) The In the event that the Borrowers shall have the right desire to request that Lender consent to (i) a transfer of all of the Properties (it being understood and agreed that no transfer of any Individual Property less than all of the Properties shall be permitted pursuant to this Section 11.3) to another Person party (the "TRANSFEREE BORROWERTransferee Borrower") and the assumption by have the Transferee Borrower of assume all of the Borrowers' obligations under the Loan Documents, (ii) and have replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of Guarantor under the Guarantors arising Loan Documents from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower transfer (collectively, an a "ASSUMPTIONTransfer and Assumption"), such Borrower may make a written application to Lender for Lender's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (B) and (C) of this Section; provided that no more than one Transfer and Assumption shall be permitted during the term of the Loan. Together with such written application, the Borrowers will shall pay to Lender a the reasonable review fee of fee, not to exceed $10,0005,000.00, then required by Lender. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and including the reasonable fees and expenses of the Rating Agencies, if any, Agencies and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the same is permitted or occurs.
(B) . Lender shall not may grant or withhold its consent to an a Transfer and Assumption (in its sole and absolute discretion. Completion of any Transfer and Assumption shall be subject to such Assumption consented conditions as Lender may determine to by Lenderimpose, a "PERMITTED ASSUMPTION") provided and upon shall in any event be subject to satisfaction of the conditions thatfollowing conditions:
(i) No Default or Event of Default shall have occurred and be continuing at the time of such Assumptioncontinuing;
(ii) The Borrowers shall have submitted to Lender true, correct and complete copies of any and all information and documents reasonably requested by Lender concerning the Properties, the Transferee Borrower, Borrower and any replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lenderindemnitors;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors Transfer and indemnitors Assumption and all related transactions;transactions if a Securitization has occurred or is reasonably anticipated to occur within four (4) months of the date of such Transfer and Assumption; 100
(v) The Borrowers shall have paid all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Assumptionidentity, experience, and shall have paid the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;
(vi) The Borrowers, financial condition of the Transferee Borrower, Borrower and the replacement guarantors and indemnitors shall have indicated be acceptable to Lender in writing its sole and absolute discretion;
(vi) Borrowers shall deliver to Lender at the closing of the Transfer and Assumption an assumption fee in the amount of one-half of one percent (0.50%) of the then unpaid principal balance of the Loan;
(vii) the Borrower Parties, Transferee Borrower, the original and replacement guarantors and indemnitors shall execute and deliver such documents as Lender may reasonably require, in form and substance reasonably satisfactory to Lender their readiness Lender, to evidence the Transfer and ability to satisfy the conditions set forth in Subsection (C) belowAssumption, including replacement guaranties and indemnities and Loan Document modifications;
Appears in 1 contract
Samples: Loan and Security Agreement (Education Realty Trust, Inc.)
Assumability. (Aa) The Borrowers shall have the right to request that Lender consent to So long as: (i) Borrower is not in default under any of the terms of the Note, this Instrument or any other Loan Document, and (ii) no situation exists which with the passage of time or the giving of notice or both would constitute a default under the Note, this Instrument or any other Loan Document, in the event Borrower desires to transfer of all of the Properties Property to another Person party (the "TRANSFEREE BORROWER"“Transferee”) and the assumption by have the Transferee Borrower assume all of Borrower’s obligations under the Note, this Instrument and all of the Borrowers' obligations under the other Loan Documents, (ii) and replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from indemnitors and after such date and release guarantors of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower Loan Documents (collectively, an "ASSUMPTION"the “Transfer and Assumption”), then Borrower, subject to the terms of this Section, may make a written application to Lender for Lender’s consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (B) and (C) of this Section. Together with such written applicationapplication (and afterwards if requested by Lender), the Borrowers Borrower will pay submit to Lender a true, correct and complete copies of any and all information and documents of any kind requested by Lender concerning the Property, Transferee and/or Borrower, together with any review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred required by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Assumption, whether or not the same is permitted or occursLender’s sole discretion.
(Bb) Lender shall not unreasonably withhold its consent to an a Transfer and Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions condition that:
(i) No Event Lender receives an opinion from counsel acceptable to Lender that (x) such Transfer and Assumption shall not affect, in any way, the enforceability of Default shall have occurred the Loan Documents or the lien status, and be continuing (y) that the Transferee complies in all respects with the provisions of Section 29 of this Instrument and such other conditions concerning the organizational structure of the Transferee as were required by Lender at the time of such Assumptionthe making of the Loan;
(ii) The Borrowers shall have Borrower has submitted to Lender true, correct and complete copies of any and all information and documents reasonably of any kind requested by Lender concerning the Property, Transferee and/or Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory the Transferee, in Lender’s sole judgment, has sufficient experience in managing assets similar in size and type to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its AffiliatesProperty;
(iv) The Borrowers shall have obtained (and delivered to in Lender) a Rating Confirmation with respect to the Assumption’s sole judgment, the Transferee Borrowerand the partners, members or shareholders of the new guarantors and indemnitors and all related transactionsTransferee are financially sound or have sufficient financial resources to manage the Property for the term of the Loan;
(v) The Borrowers shall have paid all if the Loan has been placed, or Lender plans to place the Loan, in an offering of Lender's reasonable out-of-pocket costs Securities (as defined herein) and expenses Lender receives written confirmation from the rating agencies that the Transfer and Assumption will not result in connection with considering any downgrade, qualification or withdrawal of the Assumption, ratings assigned to the pool and shall have paid assets in which the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the AssumptionLoan has been placed;
(vi) The Borrowers, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated be satisfactory to Lender in writing Lender’s sole discretion; and
(vii) Borrower has paid any review fee required by Lender.
(c) If Lender consents to the Transfer and Assumption, the Transferee and/or Borrower as the case may be, shall immediately deliver the following to Lender:
(i) Borrower shall deliver to Lender an assumption fee in the amount of one percent of the then unpaid principal balance of the Loan;
(ii) Borrower, Transferee, and the original and replacement guarantors and indemnitors shall execute and deliver to Lender any and all documents required by Lender, in form and substance reasonably satisfactory required by Lender, in Lender’s sole discretion (the “Assumption Documents”); and
(iii) Borrower shall cause to be delivered to Lender, an endorsement to the mortgagee policy of title insurance then insuring the lien created by this Instrument in form and substance acceptable to Lender, in Lender’s sole discretion (the “Endorsement”).
(d) Borrower shall pay to Lender their readiness on demand all costs and ability expenses incurred by Lender in connection with any proposed or actual Transfer and Assumption (irrespective of whether or not the same is consented to satisfy or occurs), including without limitation recording costs, title insurance endorsement premiums, and the conditions set forth fees and expenses of attorneys, accountants and rating agencies. At Lender’s option, payment of such costs and expenses shall be a condition to Lender’s consent. Notwithstanding anything contained in Subsection this Section to the contrary, (Cx) below;under no circumstances may the Property and Loan be transferred and assumed by any party under the terms of this Section more than once during the entire term of the Loan and (y) except based on Lender’s written agreement to the Transfer and Assumption and Borrower’s and Transferee’s compliance with all of the terms and provisions of this Section, the terms and provisions of this Section shall in no way amend or modify the terms and provisions contained in Section 15 of this Instrument. Notwithstanding anything contained in this Section to the contrary, in the event the Transferee is a Smartstop Entity, the Loan may be assumed by said SmartStop Entity subject to: (a) no defaults then existing, (b) Lender’s receipt of assumption documentation in form reasonably acceptable to Lender and customary title insurance endorsements, and (c) if the Loan has been sold in a structured finance transaction, confirmation by the applicable rating agencies, that the proposed transfer will not adversely affect the rating of any securities issued in connection with such structured finance transaction.
Appears in 1 contract
Samples: Deed of Trust, Assignment of Rents and Security Agreement (Strategic Storage Trust VI, Inc.)
Assumability. (A) The Borrowers shall have the right to request that Lender consent to (i) a transfer of all of the Properties Collateral to another Person (the "TRANSFEREE BORROWER") and the assumption by the Transferee Borrower of all of the Borrowers' obligations under the Loan Documents, (ii) replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from and after such date and release of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Mortgage Borrowers with pledgors new owners of the ownership interests Properties, all in connection with an assumption completed in accordance with Section 11.3 of the Transferee Borrower Mortgage Loan Agreement (collectively, an "ASSUMPTION"), subject to the conditions set forth in paragraphs (BC) and (CD) of this Section. Together with such written application, the Borrowers will pay to Lender a the reasonable review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the same is permitted or occurs.
(B) Lender shall not withhold its consent to an Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") " provided and upon the conditions that:
(i) No Event of Default shall have occurred and be continuing at the time of such Assumption;
(ii) The Borrowers shall have submitted to Lender true, correct and complete copies of any and all information and documents reasonably requested by Lender concerning the Transferee Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Assumption, the Transferee Borrower, the new guarantors and indemnitors and all related transactions;
(v) The Borrowers shall have paid all of Lender's reasonable out-of-pocket costs and expenses in connection with considering the Assumption, and shall have paid the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the Assumption;
(vi) The Borrowers, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated in writing in form and substance reasonably satisfactory to Lender their readiness and ability to satisfy the conditions set forth in Subsection (C) below;
(a) The Transferee Borrower shall be a Permitted Transferee or an Affiliate of a Permitted Transferee or (b) the identity, experience and financial condition of the Transferee Borrower shall otherwise be satisfactory to Lender in its sole discretion; and
(viii) The identity and financial condition of the replacement guarantors and indemnitors shall be satisfactory to Lender.
(C) If Lender consents to the proposed Assumption, the Transferee Borrower and/or the Borrowers, as the case may be, shall promptly and as a condition to the Assumption deliver the following to Lender:
(i) The Borrowers, Transferee Borrower, the original and replacement guarantors and indemnitors shall execute and deliver any and all documents reasonably required by Lender to evidence the Transfer and Assumption of the Loan, in form and substance reasonably required by Lender and similar to those received at Closing;
Appears in 1 contract
Assumability. (Aa) The Borrowers shall have the right to request that Lender consent to So long as (i) Borrower is not in default under any of the terms of the Note, this Instrument or any other Loan Document, and (ii) no situation exists which with the passage of time or the giving of notice or both would constitute a default under the Note, this Instrument or any other Loan Document, in the event Borrower desires to transfer of all of the Properties Property to another Person party (the "TRANSFEREE BORROWERTRANSFEREE") and the assumption by have the Transferee Borrower assume all of Borrower's obligations under the Note, this Instrument and all of the Borrowers' obligations under the other Loan Documents, (ii) and replacement of Guarantor with new guarantors and indemnitors who shall assume all of the obligations of the Guarantors arising from indemnitors and after such date and release guarantors of the Borrowers and Guarantor from obligations arising from and after such date and (iii) the replacement of the Mezzanine Borrowers with pledgors of the ownership interests in the Transferee Borrower Loan Documents (collectively, an the "TRANSFER AND ASSUMPTION"), then Borrower, subject to the terms of this Section, may make a written application to Lender for Lender's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (B) and (C) of this Section. Together with such written applicationapplication (and afterwards if requested by Lender), the Borrowers Borrower will pay submit to Lender a true, correct and complete copies of any and all information and documents of any kind requested by Lender concerning the Property, Transferee and/or Borrower, together with any review fee of $10,000. The Borrowers also shall pay on demand all of the reasonable out-of-pocket costs and expenses incurred required by Lender, including reasonable attorneys' fees and expenses, and the fees and expenses of the Rating Agencies, if any, and other outside entities, in connection with considering any proposed Assumption, whether or not the same is permitted or occursLender's sole discretion.
(Bb) Lender shall not withhold may, in its sole and absolute discretion, grant its consent to an a Transfer and Assumption (any such Assumption consented to by Lender, a "PERMITTED ASSUMPTION") provided and upon the conditions condition that:
(i) No Event Lender receives an opinion from counsel acceptable to Lender that (x) such Transfer and Assumption shall not affect, in any way, the enforceability of Default shall have occurred the Loan Documents or the lien status, and be continuing (y) that the Transferee complies in all respects with the provisions of Section 29 of this Instrument and such other conditions concerning the organizational structure of the Transferee as were required by Lender at the time of such Assumptionthe making of the Loan;
(ii) The Borrowers shall have Borrower has submitted to Lender true, correct and complete copies of any and all information and documents reasonably of any kind requested by Lender concerning the Property, Transferee and/or Borrower, replacement guarantors and indemnitors and all of such information and documents shall be reasonably acceptable to Lender;
(iii) Evidence reasonably satisfactory the Transferee, in Lender's reasonable judgment, has sufficient experience in managing assets similar in size and type to Lender shall have been provided showing that the Transferee Borrower and such of its Affiliates as shall reasonably be designated by Lender comply and will comply with Article IX, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Borrower and its AffiliatesProperty;
(iv) The Borrowers shall have obtained (and delivered to in Lender) a Rating Confirmation with respect to the Assumption's sole judgment, the Transferee Borrowerand the partners, members or shareholders of the new guarantors and indemnitors and all related transactionsTransferee are financially sound or have sufficient financial resources to manage the Property for the term of the Loan;
(v) The Borrowers shall have paid all the Loan has been placed, or Lender plans to place the Loan, in an offering of Lender's reasonable out-of-pocket costs Securities (as defined herein) and expenses Lender receives written confirmation from the rating agencies that the Transfer and Assumption will not result in connection with considering any downgrade, qualification or withdrawal of the Assumption, ratings assigned to the pool and shall have paid assets in which the amount reasonably requested by Lender as a deposit against Lender's reasonable costs and expenses in connection with effecting the AssumptionLoan has been placed;
(vi) The Borrowers, the Transferee Borrower, and the replacement guarantors and indemnitors shall have indicated be satisfactory to Lender, in writing Lender's sole discretion; and
(vii) Borrower has paid any review fee required by Lender.
(c) If Lender consents to the Transfer and Assumption, the Transferee and/or Borrower as the case may be, shall immediately deliver the following to Lender:
(i) Borrower shall deliver to Lender an assumption fee in the amount of one percent of the then unpaid principal balance of the Loan;
(ii) Borrower, Transferee, and the original and replacement guarantors and indemnitors shall execute and deliver to Lender any and all documents required by Lender, in form and substance reasonably satisfactory required by Lender, in Lender's sole discretion (the "ASSUMPTION DOCUMENTS"); and
(iii) Borrower shall cause to be delivered to Lender, an endorsement to the mortgagee policy of title insurance then insuring the lien created by this Instrument in form and substance acceptable to Lender, in Lender's sole discretion (the "ENDORSEMENT").
(d) Borrower shall pay to Lender their readiness on demand all costs and ability expenses incurred by Lender in connection with any proposed or actual Transfer and Assumption (irrespective of whether or not the same is consented to satisfy or occurs), including without limitation recording costs, title insurance endorsement premiums, and the conditions set forth fees and expenses of attorneys, accountants and rating agencies. At Lender's option, payment of such costs and expenses shall be a condition to Lender's consent.
(e) Notwithstanding anything contained in Subsection this Section to the contrary, (Cx) below;under no circumstances may the Property and Loan be transferred and assumed by any party under the terms of this Section more than once during the entire term of the Loan and (y) except based on Lender's written agreement to the Transfer and Assumption and Borrower's and Transferee's compliance with all of the terms and provisions of this Section, the terms and provisions of this Section shall in no way amend or modify the terms and provisions contained in Section 15 of this Instrument.
Appears in 1 contract
