Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without the prior written consent of Lender, sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interests.
Appears in 3 contracts
Samples: Loan Agreement (Moody National REIT I, Inc.), Loan Agreement (Moody National REIT I, Inc.), Loan Agreement (Moody National REIT I, Inc.)
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner (a) Each of Borrower and Operating Lessee acknowledges that Lender has examined and relied on the experience of Borrower and Operating Lessee and their respective stockholders, general partners and members, as applicable, and principals of Borrower and Operating Lessee in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Borrower and Operating Lessee each acknowledge that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or Master Tenant shallBorrower or Operating Lessee default in the performance of the Other Obligations, Lender can recover the Debt by a sale of the Properties. Therefore, without the prior written consent of Lender, but, in each instance, subject to the express provisions of Article 7, neither Borrower nor Operating Lessee nor any other Loan Party nor any other Person having a direct or indirect ownership or beneficial interest in Borrower, Operating Lessee or in any other Loan Party shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant assign or transfer any option with respect to or grant any other interest in the Individual Property or any part thereof thereof, or interest thereinany interest, including direct or indirect, common, preferred or otherwise, in Borrower, Operating Lessee or in any legalother Loan Party, beneficial, economic or voting in any Person holding any direct or indirect interest in Borrower Borrower, Operating Lessee or in any other Restricted Loan Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law involuntarily or otherwise enter into or subject any Individual Property to a PACE Loan (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 4.2 shall be deemed to include include, but not be limited to, (ai) an installment sales agreement wherein Borrower agrees to sell the any Individual Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower or Operating Lessee for the leasing of all or a substantial part of the any Individual Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases Leases, or any RentsGross Revenue; (ciii) if Borrower Borrower, Operating Lessee or any other Restricted Loan Party or any general partner, managing member or controlling shareholder of Borrower or of any other Loan Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporationstock; (div) if Borrower Borrower, Operating Lessee or any other Restricted Loan Party, or any general partner, managing member or controlling shareholder of Borrower, Operating Lessee, or of any other Loan Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, venturer or member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, partner or the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturerventurer or member, member and (v) any pledge, hypothecation, assignment, transfer or non-member manager, other encumbrance of any direct or the creation or issuance of new membership interests or indirect ownership interest in Borrower, Operating Lessee or in any non-member manager; other Loan Party.
(b) Notwithstanding the foregoing, a Transfer within the meaning of this Section 4.2 shall not include (i) dispositions of equipment and fixtures in the ordinary course of Borrower’s or Operating Lessee’s business (including equipment or fixtures which are being replaced or which are no longer necessary in connection with the operation of the Property, provided that (1) such disposition in this parenthetical will not have a material adverse effect on or materially impair the utility of the applicable Individual Property (a “Material Adverse Effect”) and (e2) if any new equipment or fixtures acquired by Borrower or Operating Lessee (and not so disposed of) shall be subject to the Lien of the Loan Documents (collectively, the “Disposition Conditions”)), (ii) Leases in effect on the date hereof or otherwise permitted by this Agreement, (iii) Permitted Transfers, (iv) easements and rights of way in the ordinary course of business that would not have a material adverse effect on the use, occupancy or access to the applicable Individual Property, and (v) subject to Section 5.3 hereof, transfers of portions of Individual Properties to Governmental Authorities for (1) dedication of such portion to a public use or (2) easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for purposes of public access, the placement of water and sewer lines, telephone and telegraph lines, electric lines or other utilities serving such Individual Property; provided no such transfers shall have any adverse effect on the first priority position of the Lien of the applicable Mortgage or any other Restricted Party is a trust or nominee trustMaterial Adverse Effect. In connection with any event specified in clause (i) above, Lender shall, from time to time, upon receipt of an officer’s certificate requesting the voluntary or involuntary transfer same and confirming satisfaction of the legal Disposition Conditions, execute a written instrument in form and substance reasonably satisfactory to Lender to confirm that such equipment or beneficial interest fixtures which are to be, or have been, sold or disposed of are free from the Lien of the Loan Documents; provided, Borrower shall reimburse Lender for its or its Servicer’s reasonable fees and expenses incurred in reviewing such trust or nominee trust or the creation or issuance of new legal or beneficial interestsinstrument and Borrower’s request.
Appears in 3 contracts
Samples: Loan Agreement (Hospitality Investors Trust, Inc.), Loan Agreement (Hospitality Investors Trust, Inc.), Loan Agreement (Hospitality Investors Trust, Inc.)
Due on Sale and Encumbrance; Transfers of Interests. (a) Except to the extent permitted pursuant to as provided in Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallVIII hereof, without the prior written consent of LenderAdministrative Agent (which consent may be granted or withheld in Administrative Agent’s sole and absolute discretion), neither Borrower nor any other Person having a direct or indirect ownership or beneficial interest in Borrower shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignassign or transfer any interest, alienatedirect or indirect, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof)a Restricted Party, grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partythereof, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “Transfer”). , in violation of the covenants and conditions set forth in the Mortgage and this Agreement (collectively, “Prohibited Transfer”).
(b) A Prohibited Transfer within the meaning of this Section 4.2.1 shall include, but not be deemed to include limited to, (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any RentsRents other than in accordance with the Loan Documents; (ciii) if Borrower or any other a Restricted Party is a corporation, the voluntary any merger, consolidation or involuntary sale, conveyance Sale or transfer Pledge of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in one or a party or parties who are not now stockholders or any change in the control series of such corporationtransactions; (div) if Borrower or any other a Restricted Party is a limited or general partnershippartnership or joint venture, joint venture any merger or limited liability company, consolidation or the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary Sale or involuntary transfer Pledge of the partnership interest of any general partner, managing or limited partner or limited partner, the creation any profits or issuance of new proceeds relating to such partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, interests or the creation or issuance of new membership interests limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or interest in any consolidation or the change, removal, resignation or addition of a managing member or non-member managermanager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; and (evi) if Borrower or any other a Restricted Party is a trust or nominee trust, any merger, consolidation or the voluntary Sale or involuntary transfer Pledge of the legal or beneficial interest in such trust or nominee trust a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the replacement of Manager other than in accordance with the Loan Documents; and (viii) any action for partition of the Property (or any portion thereof or interest therein) or any similar action instituted or prosecuted by Borrower or by any other person or entity, pursuant to any contractual agreement or other instrument or under applicable law (including, without limitation, common law).
Appears in 3 contracts
Samples: Senior Loan Agreement (Pacific Oak Strategic Opportunity REIT, Inc.), Senior Loan Agreement (KBS Strategic Opportunity REIT, Inc.), Mezzanine Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of Lender, but, in each instance, subject to the provisions of Article 8 (which set forth certain permitted transfers that supersede the terms of this Section 4.2.1), none of any Borrower, SPE Party, Operating Lessee or any other Person having a direct or indirect ownership or beneficial interest in any Borrower, SPE Party or Operating Lessee shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant assign or transfer any option with respect to or grant any other interest in the Property or any part thereof or interest thereinthereof, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partyinterest, direct or indirect, in any Borrower, SPE Party or Operating Lessee, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein any Borrower or Operating Lessee agrees to sell the any Property or any part thereof or interest therein for a price to be paid in installments; (b) other than the Operating Leases, an agreement by any Borrower or Operating Lessee for the leasing of all or a substantial part of the any Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, any Borrower’s or Operating Lessee’s right, title and interest in and to any Leases or any Rents; (c) if Borrower any Borrower, SPE Party, Operating Lessee, any Guarantor or any other Restricted Party general partner, managing member or controlling shareholder of any Borrower, SPE Party, Operating Lessee or any Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that in one or a series of transactions by which an aggregate of more than ten percent (10%) of such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower any Borrower, SPE Party, Operating Lessee, any Guarantor or any other Restricted Party general partner, managing member or controlling shareholder of any Borrower, SPE Party, Operating Lessee or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, venturer or member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, partner or the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member venturer or non-member manager, or the creation or issuance of new membership interests or interest in any non-member managermember; and (e) if Borrower any pledge, hypothecation, assignment, transfer or other encumbrance of any other Restricted Party is a trust direct or nominee trust, the voluntary or involuntary transfer of the legal or beneficial indirect ownership interest in such trust any Borrower, SPE Party or nominee trust or the creation or issuance of new legal or beneficial interestsOperating Lessee.
Appears in 3 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Due on Sale and Encumbrance; Transfers of Interests. Except to (i) Borrower acknowledges and agrees that Lender has relied upon the extent permitted pursuant to Article 8principals of Borrower and their experience in owning and operating the Property. Accordingly, neither Borrower nor any other Restricted Party, nor in the event that (A) any direct interest in Borrower, or (B) except as set forth in Section 8(v)(ii) below, any indirect legal interest in Borrower, shall be sold, conveyed, disposed of, alienated, hypothecated, assigned, pledged, mortgaged, further encumbered or beneficial owner otherwise transferred, in any manner or way, whether voluntarily or involuntarily (each of Borrower or Master Tenant shallthe foregoing, a “Transfer”) without the prior written consent of Lender, sellthen the same shall, transferat the option of Lender, conveyconstitute an Event of Default hereunder and under the other Loan Documents and Lender shall have the right, mortgageat its option, grantto declare any or all of the Debt, bargainirrespective of the Maturity Date, encumberimmediately due and payable and to otherwise exercise any of its other rights and remedies contained in this Loan Agreement and/or any of the other Loan Documents.
(ii) Notwithstanding anything in Section 8(v)(i) above to the contrary, pledge, assign, alienate, lease provided (except A) Borrower provides Lender with at least ten (10) days written notice (the “Permitted Transfer Notice”) prior to Tenants under Leases that are not in violation the date of Section 4.1.10 hereofany such Permitted Transfer (as hereinafter defined), grant (B) on the date of delivery to Lender of the Permitted Transfer Notice and on the date of such Permitted Transfer, no Event of Default or event which, with the giving of notice or passage of time, would result in an Event of Default, then exists, (C) any option with respect to or grant any other interest such Permitted Transfer would not result in the Property release of any Guarantor or cause any part thereof or interest thereinGuarantor to no longer derive a direct material benefit from the making of the Loan (as determined by Lender in its sole and absolute discretion), including (D) any legaltransferee pays all costs and expenses incurred by Lender, beneficialincluding, economic or voting interest but not limited to, reasonable attorneys fees, in Borrower or connection with such Permitted Transfer, and (E) any such transferee and transferor provide Lender with such other Restricted Partyinformation and documents as requested by Lender in its sole and absolute discretion, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise the following transfers (each, each a “Permitted Transfer”). A Transfer within the meaning of this Section 4.2.1 ) shall be deemed to include permitted by Lender:
(a1) an installment sales agreement wherein transfers or pledges of direct or indirect Equity Interests (as hereinafter defined) in the sole member of Borrower agrees to sell which in the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for aggregate during the leasing of all or a substantial part term of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; Loan (ci) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock do not exceed forty-nine percent (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise49%) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner total direct or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the indirect legal or beneficial interest Equity Interests in such trust the sole member of Borrower and (ii) do not result in a change in Control (as hereinafter defined) of the sole member of Borrower; and
(2) transfers or nominee trust pledges of direct or indirect Equity Interests in the creation sole member of Borrower among the holders thereof or issuance their Affiliates (or parties under common Control with them) as of new legal the date hereof provided that, after the consummation thereof, sole member of Borrower is Controlled by: (i) entities Controlled by, affiliated with, or beneficial interestsunder common Control with Independence Realty Trust, Inc., (ii) Guarantor or entities Controlled by, affiliated with, or under common Control with Guarantor; and/or (iii) any combination of the foregoing.
Appears in 2 contracts
Samples: Loan and Security Agreement (Independence Realty Trust, Inc), Loan and Security Agreement and Promissory Note (Independence Realty Trust, Inc)
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without (a) Without the prior written consent of Lender, sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease Lender and except as expressly provided below:
(except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant i) No Borrower Party nor any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) Person having an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal ownership or beneficial interest in such trust a Borrower Party shall (A) consummate a Transfer, or nominee trust (B) enter into any easement or other agreement granting rights in or restricting the use or development of the Collateral; and
(ii) No new partners shall be admitted to or created in a Borrower Party (nor shall any existing partner withdraw from a Borrower Party); and
(iii) No change in the day-to-day control and management of a Borrower Party, any Property or the creation Portfolio shall be implemented. Lender shall not be required to demonstrate any actual impairment of its security or issuance any increased risk of new legal default in order to declare the Obligations to be immediately due and payable upon a Transfer in violation of this Agreement. This provision shall apply to every Transfer in violation of this Agreement regardless of whether such Transfer was voluntary or beneficial interestsnot, or whether or not Lender has previously consented to any Transfer.
(b) Notwithstanding the restrictions in Subsection 7.1(a), Permitted Transfers will be permitted without Lender’s prior consent. Carveout Indemnitor (or any successor permitted under clause (a)(iii) of the definition of “Permitted Transfer” in Section 1.1) shall at all times, whether prior to or following the occurrence of any Permitted Transfer, be the sole general partner of each Individual Borrower.
(c) Notwithstanding anything to the contrary set forth in this Agreement, Lender shall consent to a one-time transfer of title to the Portfolio and assumption of 100% of the Loan and the duties and obligations of Borrower and Carveout Indemnitor under the Loan Documents, subject to satisfaction of each and every one of the following conditions:
(i) At least thirty (30) days prior to such assumption, Borrower Parties shall provide to Lender: (A) written notice (a “Assumption Request”) of the proposed transfer, (B) a work fee in the amount of $25,000.00 (the “Assumption Work Fee”), (C) the name(s), address(es) and organizational documents of the proposed purchaser and of the principals, affiliates and parent or other majority owners, as applicable, of the proposed purchaser, (D) detailed and complete financial statements of the proposed purchaser and of the principals, affiliates and parent or other majority owners, as applicable, of the proposed purchaser, (E) information with respect to the business and business experience of the proposed purchaser and its principals, affiliates and parent or other majority owners, as applicable, and their experience in the ownership and operation of properties similar to the Portfolio and other commercial real estate, (F) information on the proposed property management company and a copy of the proposed property management agreement, (G) the terms and conditions of the proposed sale and a copy of the executed purchase and sale agreement, (H) a description of the ownership structure of the proposed purchaser and each of its principals, affiliates and parent or other majority owners, as applicable, (I) the purchaser’s pro-forma operating and management plan for the Portfolio, and (J) promptly following Lender’s request, such other information as Lender may reasonably request to permit it to determine the creditworthiness and management abilities of the proposed purchaser and its principals, affiliates and parent or other majority owners, as applicable;
(ii) Lender must approve, in the exercise of its discretion, the identity, creditworthiness, management abilities and all other attributes of the proposed purchaser and the proposed replacement Carveout Indemnitor(s), and their respective principals, affiliates and parent or other majority owners, as applicable;
(iii) No Event of Default shall have occurred and be continuing, either as of the date of the Assumption Request or thereafter through the date of transfer of title to the Portfolio and assumption of the Loan;
(iv) The Portfolio, as of the date of transfer and assumption and thereafter, must be managed by a management company approved by Lender (in the exercise of its reasonable judgment) under a management agreement satisfactory to Lender (in the exercise of its reasonable judgment) and otherwise satisfying the requirements of Section 7.10;
(v) At the closing of any approved transfer and assumption, the proposed purchaser shall assume the duties and obligations of Borrower Parties under the Loan Documents (subject to the limitations on liability set forth in Article 10) pursuant to assumption documents in form and substance satisfactory to Lender (in the exercise of its reasonable judgment). Additionally, at the time of the approved transfer and assumption, the proposed purchaser shall provide to Lender an environmental indemnity agreement from said purchaser and from another financially responsible Person acceptable to Lender (in its discretion) in form and substance reasonably satisfactory to Lender (which form may be different from the form executed by Borrower Parties as a result of Lender’s updating its standard form of environmental indemnity agreement or as a result of specific environmental conditions at any Property) and a recourse carveout indemnity in substantially the same form as the Carveout Indemnity, also from a financially responsible Person acceptable to Lender (in its discretion). Borrower Parties and the proposed purchaser and such other Persons as Lender shall require shall also deliver and, if applicable, execute (A) evidence of authority and entity existence, (B) Uniform Commercial Code, judgment and bankruptcy searches, (C) Uniform Commercial Code financing statements, (D) an endorsement to the Title Policy updating the effective date to the date of the transfer, showing the purchaser as the owner of each Property, showing no additional title exceptions, except as shall be approved by Lender (in its discretion) and otherwise in form and substance reasonably acceptable to Lender, (E) opinions of counsel reasonably acceptable to Lender on such matters as Lender shall reasonably require, (F) evidence of insurance as required by Section 3.1, and (G) such other documents as Lender shall reasonably require in order to effectuate the transaction as contemplated by this Subsection (c);
(vi) At the closing of any approved transfer and assumption, the proposed purchaser shall, in accordance with the terms and conditions of Sections 3.4, deposit with Lender sufficient funds to pay when due all Impounds in accordance with the terms of Section 3.
Appears in 2 contracts
Samples: Fixed Rate Term Loan Agreement (Mission West Properties Inc), Fixed Rate Term Loan Agreement (Mission West Properties Inc)
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant Guarantor shall, without the prior written consent of Lender, sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to assign or grant any other interest in transfer the Property or any part thereof thereof, or interest thereinany interest, including any legaldirect or indirect, beneficial, economic or voting interest in Borrower or any other Restricted Party, Guarantor whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (ciii) if Borrower, any Guarantor, or any general partner, managing member or controlling shareholder of Borrower or any other Restricted Party Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that in one or a series of transactions by which an aggregate of more than 25% of such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (div) if Borrower Borrower, Managing Member, any other Guarantor or any general partner, managing member or controlling shareholder of Borrower, Managing Member or any other Restricted Party Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, partner or managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited managing partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (ev) if Borrower any pledge, hypothecation, assignment, transfer or other encumbrance of any direct or indirect ownership interest in Borrower, Managing Member or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsGuarantor.
Appears in 2 contracts
Samples: Loan Agreement (O'Donnell Strategic Industrial REIT, Inc.), Loan Agreement (O'Donnell Strategic Industrial REIT, Inc.)
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of LenderAdministrative Agent and the Lenders (to the extent required under Section 11.2), except as provided in Section 8.1 below:
(a) the Borrower shall not (1) directly or indirectly sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignor assign any interest in the Portfolio or any part thereof (including any membership or any other ownership interest in Borrower); (2) further encumber, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to xxxxx x Xxxx or grant xxxxx any other interest in the Property Portfolio or any part thereof or interest therein, (including any legal, beneficial, economic membership or voting other ownership interest in Borrower or any other Restricted PartyBorrower), whether directly or indirectly, voluntarily or involuntarily; or (3) enter into any easement or other agreement granting rights in or restricting the use or development of the Portfolio or any part thereof; and
(b) no new general partner, by operation member, or limited partner having the ability to control the affairs of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 Borrower shall be deemed admitted to include or created in Borrower (a) an installment sales agreement wherein nor shall any existing general partner or member or controlling limited partner withdraw from Borrower), and no change in Borrower’s organizational documents relating to control over Borrower agrees to sell and/or the Property Portfolio or any part thereof or interest therein for a price to shall be paid effected. As used in installments; (b) an agreement by Borrower for this Section 8.1, “transfer” shall include the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer oftransfer, conveyance, mortgage, pledge, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer assignment of the legal or beneficial ownership of (1) the Portfolio or any part thereof, (2) any partnership interest in any general partner in Borrower that is a partnership, and (3) any voting stock in any general partner in Borrower that is a corporation; “transfer” shall not include the leasing of individual units within the Portfolio so long as Borrower complies with the provisions of the Loan Documents relating to such trust leasing activity. Without limiting the foregoing, Borrower further agrees that it will require each Person that proposes to become a partner, member or nominee trust or shareholder (each such Person, an “Interest Holder”) in Borrower after the creation or issuance Closing Date to sign and deliver to Borrower, within thirty (30) days after such transfer (and Borrower shall deliver to Administrative Agent and Lenders promptly after receipt), a certificate executed by a duly authorized officer of the new legal or beneficial interestsInterest Holder containing representations, warranties and covenants substantially the same as the representations, warranties and covenants provided by Borrower in Article 14 hereof.
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. (1) Except to as permitted by the extent permitted pursuant to Article 8provisions of this Agreement or the other Loan Documents, neither no Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallParty will, without the prior written consent of Lenderthe Required Lenders, sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property permit or any part thereof or interest therein for a price to be paid in installments; suffer (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) any sale, assignment, conveyance, transfer or the creation other disposition of any legal or issuance of new stock such that such corporation’s stock shall be vested equitable interests in a party or parties who are not now stockholders all or any change part of its applicable Individual Property (a “Property Transfer”), (b) permit or suffer (by operation of law or otherwise) any mortgage, Lien or other encumbrance of all or any part of the Individual Property other than the Permitted Encumbrances, (c) permit or suffer (by operation of law or otherwise) any sale, assignment, conveyance, transfer or other disposition of any direct or indirect interest in the control of such corporation; any Borrower Party (an “Equity Transfer”), (d) if Borrower permit or suffer (by operation of law or otherwise) any other Restricted Party is a limited or general partnershippledge, joint venture or limited liability companyhypothecation, the change, removal, resignation or addition creation of a general partner, managing partner, limited partner, joint venturer, member security interest in or non-member manager, the voluntary or involuntary transfer of the partnership interest other encumbrance of any general partner, managing partner direct or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or indirect interest in any non-member manager; and Borrower Party, (e) if Borrower file a declaration of condominium with respect to any Individual Property or (f) grant any easement or other Restricted Party agreement granting rights in or restricting the use or development of any Individual Property (each action described in clauses (a), (b), (c), (d), (e), (f) and (g) of this Section 9.1(1) is a trust “Prohibited Transfer”).
(2) A Property Transfer of any Individual Property subject to the Lien of the Mortgage (but not a mortgage, Lien or nominee trustother encumbrance on the applicable Individual Property other than the Permitted Encumbrances) is permitted, provided that each of the following conditions are satisfied:
(a) no Event of Default shall have occurred and be continuing and such Property Transfer shall not result in an Event of Default;
(b) Borrower shall give or cause to be given written notice to Administrative Agent of the proposed Property Transfer not later than thirty (30) days prior thereto, which notice shall set forth the name of the Transferee and set forth the date the Property Transfer is expected to be effective;
(c) the Person (the “Transferee”) to whom the applicable Individual Property is sold or conveyed in the Property Transfer (i) satisfies the requirements of a Single Purpose Entity, (ii) is not, nor any of its constituent equity owners (other than Public Shareholders) are, a Prohibited Person, and (iii) is, and all of its constituent equity owners (other than Public Shareholders) that own more than ten percent (10%) of the outstanding interests in the Transferee are, in good standing in its state or country of organization;
(d) after giving effect to such Property Transfer, (i) Borrower owns 100% of the direct or indirect Equity Interests (other than de minimis preferred shares or limited partnership interests) in the Transferee and (ii) the Transferee is controlled, directly or indirectly, by Borrower;
(e) following such Transfer the applicable Individual Property will be self-managed by the Transferee or managed by a Qualified Manager;
(f) the Transferee shall execute a Guaranty Supplement, effective as of the date of the Property Transfer and shall deliver or cause to be delivered a solvency certificate, such legal opinions and title insurance endorsements as may be reasonably requested by Administrative Agent; and
(g) the proposed Property Transfer will not result in a violation of any of the covenants contained herein relating to compliance with ERISA, the voluntary Patriot Act and the Executive Order, and Borrower shall deliver or involuntary transfer cause the proposed Transferee to deliver to Administrative Agent such documentation of compliance as Administrative Agent shall reasonably request. Upon satisfaction of each of the legal or beneficial interest conditions set forth in this Section 9.1(2), (i) Administrative Agent shall release the applicable Property Guarantor from any liability thereafter arising under the Loan Documents to which the applicable Property Guarantor is a party and (ii) the applicable Property Guarantor shall release Administrative Agent, Arrangers and the Lenders from any claims against Administrative Agent, Arrangers and the Lenders arising in connection with the Loans prior to the date of such trust or nominee trust or Property Transfer, such releases to be self-operative without the creation or issuance of new legal or beneficial interestsneed for any additional release in writing.
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Due on Sale and Encumbrance; Transfers of Interests. (a) Except to the extent permitted pursuant to as provided in Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallVIII hereof, without the prior written consent of Lender, neither Borrower nor any other Person having a direct or indirect ownership or beneficial interest in Borrower shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assigndivide into two (2) or more limited liability companies or other legal entities, alienateassign or transfer any interest, lease (except to Tenants under Leases that are not direct or indirect, in violation of Section 4.1.10 hereof)a Restricted Party, grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partythereof, whether directly or indirectly, voluntarily or involuntarilyinvoluntarily (collectively, by operation of law or otherwise (each, a “Prohibited Transfer”). .
(b) A Prohibited Transfer within the meaning of this Section 4.2.1 shall include, but not be deemed to include limited to, (ai) an installment sales agreement wherein any Borrower agrees to sell the any Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by any Borrower for the leasing of all or a substantial part of the any Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, such Borrower’s right, title and interest in and to any Leases or any Rents; (ciii) if Borrower or any other a Restricted Party is a corporation, the voluntary any merger, consolidation, division into two (2) or involuntary sale, conveyance more legal entities or transfer Sale or Pledge of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in one or a party or parties who are not now stockholders or any change in the control series of such corporationtransactions; (div) if Borrower or any other a Restricted Party is a limited or general partnershippartnership or joint venture, joint venture any merger or limited liability companyconsolidation, any division into two (2) or more legal entities or the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary Sale or involuntary transfer Pledge of the partnership interest of any general partner, managing or limited partner or limited partnerany profits or proceeds relating to such partnership interests (provided, that, for the creation or issuance avoidance of new partnership interestsdoubt, pledges of Borrower distributions by indirect owners of Borrower shall not be prohibited hereby, provided such distributions are not made by Borrower during the voluntary or involuntary transfer continuance of the interest of any joint venturer, member or non-member manager, a Cash Management Sweep Period) or the creation or issuance of new membership interests limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or interest in consolidation, any division into two (2) or more legal entities or the change, removal, resignation or addition of a managing member or non-member managermanager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest (provided, that, for the avoidance of doubt, pledges of Borrower distributions by indirect owners of Borrower shall not be prohibited hereby, provided such distributions are not made by Borrower during the continuance of a Cash Management Sweep Period); and (evi) if Borrower or any other a Restricted Party is a trust or nominee trust, any merger, consolidation, any division into two (2) or more legal entities or the voluntary Sale or involuntary transfer Pledge of the legal or beneficial interest in such trust or nominee trust a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 7.3; and (viii) any action for partition of any Property (or any portion thereof or interest therein) or any similar action instituted or prosecuted by Borrower or by any other person or entity, pursuant to any contractual agreement or other instrument or under applicable law (including, without limitation, common law).
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Due on Sale and Encumbrance; Transfers of Interests. (a) Except to the extent as permitted pursuant to under Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallVIII hereof, without the prior written consent of Lender, neither Borrower nor any other Person having a direct or indirect ownership or beneficial interest in Borrower shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignassign or transfer any interest, alienatedirect or indirect, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof)a Restricted Party, grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partythereof, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “Transfer”). , in violation of the covenants and conditions set forth in the Mortgage and this Agreement (collectively, “Prohibited Transfer”).
(b) A Prohibited Transfer within the meaning of this Section 4.2.1 shall include, but not be deemed to include limited to, (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any RentsRents (except pursuant to any of the Loan Documents); (ciii) if Borrower or any other a Restricted Party is a corporation, the voluntary any merger, consolidation or involuntary sale, conveyance Sale or transfer Pledge of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in one or a party or parties who are not now stockholders or any change in the control series of such corporationtransactions; (div) if Borrower or any other a Restricted Party is a limited or general partnership, joint venture any merger or limited liability company, consolidation or the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary Sale or involuntary transfer Pledge of the partnership interest of any general partner, managing or limited partner or limited partner, the creation any profits or issuance of new proceeds relating to such partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, interests or the creation or issuance of new membership interests limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or interest in any consolidation or the change, removal, resignation or addition of a managing member or non-member managermanager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; and (evi) if Borrower or any other a Restricted Party is a trust or nominee trust, any merger, consolidation or the voluntary Sale or involuntary transfer Pledge of the legal or beneficial interest in such trust or nominee trust a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 7.3; and (viii) any action for partition of the Property (or any portion thereof or interest therein) or any similar action instituted or prosecuted by Borrower, Guarantors or any Person Controlled by, or under common control with any of such Persons, or any of their respective officers, directors or employees pursuant to any contractual agreement or other instrument or under applicable law (including, without limitation, common law).
Appears in 1 contract
Samples: Loan Agreement (Pacific Oak Strategic Opportunity REIT II, Inc.)
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of Lender, but, in each instance, subject to the provisions of ARTICLE 8, neither any Borrower nor Sole Equity Member nor any other Person having a direct or indirect ownership or beneficial interest in any Borrower or Sole Equity Member shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant assign or transfer any option with respect to or grant any other interest in the Individual Property or any part thereof or interest thereinthereof, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partyinterest, direct or indirect, in any Borrower, Sole Equity Member, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “Transfer”"TRANSFER"). A Transfer within the meaning of this Section SECTION 4.2.1 shall be deemed to include (ai) an installment sales agreement wherein any Borrower agrees to sell the any Individual Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by any Borrower for the leasing of all or a substantial part of the any Individual Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, any Borrower’s 's right, title and interest in and to any Leases or any Rents; (ciii) if any Borrower, either Guarantor or any general partner, managing member or controlling shareholder of Borrower or any other Restricted Party either Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s 's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that in one or a series of transactions by which an aggregate of more than 10% of such corporation’s 's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation, except to the extent such Transfer is a Permitted Transfer under SECTION 8.1; (div) if Borrower any Borrower, Sole Equity Member, either Guarantor or any other Restricted Party general partner, managing member or controlling shareholder of any Borrower, Sole Equity Member or either Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, venturer or member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, partner or the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturerventurer or member, member except to the extent such Transfer is a Permitted Transfer under SECTION 8.1; and (v) any pledge, hypothecation, assignment, transfer or non-member manager, other encumbrance of any direct or the creation or issuance of new membership interests or indirect ownership interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsSole Equity Member.
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except Without the prior written consent of Administrative Agent, which may be withheld in its sole discretion, the Loan shall become due and payable upon the occurrence of any Transfer (as defined below), except for Permitted Encumbrances and Permitted Transfers. Without limiting the foregoing, other than with respect to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shalla Permitted Transfer, without the prior written consent of LenderAdministrative Agent:
(a) neither Borrower nor any other Person having a legal or beneficial ownership or economic interest in Borrower shall: (i) Transfer, selldirectly or indirectly, transferany interest in the Property or any part thereof, conveyany Collateral or any other asset of Borrower, or mortgage, grantpledge or assign any other asset of Borrower, bargain, except for Permitted Encumbrances; (ii) further encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to xxxxx x xxxx or grant xxxxx any other interest in the Property or any part thereof thereof, whether voluntarily or interest thereininvoluntarily, including except for Permitted Encumbrances; (iii) enter into any legaleasement or other agreement granting rights in, beneficialor restricting the use or development of, the Property, except for Permitted Encumbrances; or (iv) permit any partition of the Property;
(b) except for a Permitted Transfer, neither Borrower nor any other Person having a beneficial ownership or economic or voting interest in Borrower or any other Restricted Partyshall Transfer, whether directly or indirectly, any ownership or economic interest in Borrower, or encumber, alienate, xxxxx x xxxx or grant any other interest in any ownership or economic interest in Borrower, whether voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; and
(c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of no new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, manager or member having the ability to control the affairs of Borrower shall be admitted to or non-member manager, the voluntary or involuntary transfer of the partnership interest of created in Borrower (nor shall any existing general partner, managing partner or controlling limited partner, the creation or issuance of new partnership interestsmanager, the voluntary or involuntary transfer of the interest of any joint venturer, managing member or non-controlling member managerwithdraw from Borrower), and no change in Borrower’s organizational documents relating to control over Borrower and/or the Property shall be effected that would have the effect of changing the control, direct or the creation or issuance indirect, of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsBorrower.
Appears in 1 contract
Samples: Construction Loan Agreement
Due on Sale and Encumbrance; Transfers of Interests. (a) Except to the extent permitted pursuant to as provided in Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallVIII hereof, without the prior written consent of LenderAgent, neither Borrower nor any other Person having a direct or indirect ownership or beneficial interest in Borrower shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignhypothecate, alienateassign or transfer any interest, lease (except to Tenants under Leases that are not direct or indirect, in violation of Section 4.1.10 hereof)a Restricted Party, grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partythereof, whether directly or indirectly, voluntarily or involuntarilyinvoluntarily (collectively, by operation of law or otherwise (each, a “Prohibited Transfer”). .
(b) A Prohibited Transfer within the meaning of this Section 4.2.1 shall include, but not be deemed to include limited to, (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (ciii) if Borrower or any other a Restricted Party is a corporation, the voluntary any merger, consolidation or involuntary sale, conveyance Sale or transfer Pledge of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in one or a party or parties who are not now stockholders or any change in the control series of such corporationtransactions; (div) if Borrower or any other a Restricted Party is a limited or general partnershippartnership or joint venture, joint venture any merger or limited liability company, consolidation or the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary Sale or involuntary transfer Pledge of the partnership interest of any general partner, managing or limited partner or limited partnerany profits or proceeds relating to such partnership interests (provided, that, for the creation or issuance avoidance of new partnership interestsdoubt, pledges of Borrower distributions by indirect owners of Borrower shall not be prohibited hereby, provided such distributions are not made by Borrower during the voluntary or involuntary transfer continuance of the interest of any joint venturer, member or non-member manager, a Cash Sweep Event Period) or the creation or issuance of new membership interests limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or interest in any consolidation or the change, removal, resignation or addition of a managing member or non-member managermanager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest (provided, that, for the avoidance of doubt, pledges of Borrower distributions by indirect owners of Borrower shall not be prohibited hereby, provided such distributions are not made by Borrower during the continuance of a Cash Sweep Event Period); and (evi) if Borrower or any other a Restricted Party is a trust or nominee trust, any merger, consolidation or the voluntary Sale or involuntary transfer Pledge of the legal or beneficial interest in such trust or nominee trust a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of Manager (excluding an Affiliated Manager) other than in accordance with Section 7.3; and (viii) any action for partition of the Property (or any portion thereof or interest therein) or any similar action instituted or prosecuted by Borrower or by any other person or entity, pursuant to any contractual agreement or other instrument or under applicable law (including, without limitation, common law) (an “Action For Partition”).
Appears in 1 contract
Samples: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Due on Sale and Encumbrance; Transfers of Interests. Except to Borrower acknowledges that Lender has examined and relied on the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner experience of Borrower and its stockholders, general partners and members, as applicable, and principals of Borrower in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower's ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or Master Tenant shallthe performance of the Other Obligations, Lender can recover the Debt by a sale of the Property. Therefore, without the prior written consent of Lender, but, in each instance, subject to the provisions of Article 7, neither Borrower nor SPC Party nor any other Person having a direct or indirect ownership or beneficial interest in Borrower or SPC Party shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to assign or grant any other interest in transfer the Property or any part thereof thereof, or interest thereinany interest, including any legaldirect or indirect, beneficial, economic or voting interest in Borrower or any other Restricted SPC Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “"Transfer”"). A Transfer within the meaning of this Section 4.2.1 4.2 shall be deemed to include (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s 's right, title and interest in and to any Leases or any Rents; (ciii) if Borrower, Guarantor or any general partner, managing member or controlling shareholder of Borrower or any other Restricted Party Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s 's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders stock; (iv) if Borrower, SPC Party, Guarantor or any change in the control general partner, managing member or controlling shareholder of such corporation; (d) if Borrower Borrower, SPC Party, or any other Restricted Party Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, venturer or member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, partner or the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturerventurer or member; (v) any pledge, member hypothecation, assignment, transfer or non-member manager, other encumbrance of any direct or the creation or issuance of new membership interests or indirect ownership interest in Borrower or any non-member managerSPC Party; and (evi) if Borrower the sale or pledge of any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsCondominium Unit.
Appears in 1 contract
Samples: Loan Agreement (Bluerock Residential Growth REIT, Inc.)
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of Lender, but, in each instance, subject to the provisions of Article 8 permitting certain Transfers described in Article 8, neither Borrower nor Sole Member nor any other Person having a direct or indirect ownership or beneficial interest in Borrower or Sole Member shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to assign or grant any other interest in transfer the Property or any part thereof or interest thereinthereof, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partyinterest, direct or indirect, in Borrower, Sole Member, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “"Transfer”"). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s 's right, title and interest in and to any Leases or any Rents; (ciii) if Borrower, Guarantor, or any general partner, managing member or controlling shareholder of Borrower or any other Restricted Party Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s 's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that in one or a series of transactions by which an aggregate of more than 10% of such corporation’s 's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (div) if Borrower Borrower, Sole Member any Guarantor or any other Restricted Party general partner, managing member or controlling shareholder of Borrower, Sole Member or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, venturer or member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, partner or the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member venturer or non-member manager, or the creation or issuance of new membership interests or interest in any non-member managermember; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interests.and
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of LenderAgent, sellBorrower shall not nor shall Borrower permit Guarantor or Master Tenant to:
(i) except as otherwise permitted herein or by the Assignment of Membership Interests create, or permit the creation of, any new direct or indirect ownership interest in Borrower or Master Tenant, or
(ii) transfer, conveyor permit the transfer of (A) all or any part of the Project, mortgageor any interest therein (other than Leases permitted hereunder), grantor (B) except as otherwise permitted herein or by the Assignment of Membership Interests any direct or indirect ownership interest in Borrower or Master Tenant (including any interest in the profits, bargainlosses or cash distributions in any way relating to the Project, Master Tenant or Borrower), or
(iii) encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof)xxxxx x Xxxx on, grant any option with respect to or grant any other interest in in, the Property Project or any part thereof (other than Leases permitted hereunder ) or take or fail to take any other action which would result in a Lien against the Project or the interest therein, including of Borrower in the Project or any legal, beneficial, economic or voting ownership interest in Borrower or any other Restricted PartyMaster Tenant, whether directly or indirectly, voluntarily or involuntarilyinvoluntarily except Liens in favor of Agent for the benefit of Lender and Agent or Liens for purchase money indebtedness expressly permitted pursuant to Section 7.9 herein or Liens which are being duly contested by Borrower in accordance with the terms hereof, by operation or
(iv) enter into any easement or other agreement granting rights in or restricting the use or development of law the Project, or otherwise Agent acknowledges that Guarantor and BF Limited Partnership and Guarantor and Providence Health Systems-Washington have entered into those certain Purchase Contract and Sale Agreements dated March 22, 2006 and April ___, 2006, respectively (eachas amended from time to time, a “Transfer”collectively, the "Master Tenant Purchase Contracts"), pursuant to which Guarantor intends to purchase one hundred percent (100%) of the membership interests in Master Tenant. A Transfer within Notwithstanding the meaning foregoing provisions of this Section 4.2.1 7.2, the direct ownership interests in Master Tenant may be sold to Guarantor pursuant to the terms of the Master Tenant Purchase Contracts so long as (i) after any such transaction (the "Master Tenant Acquisition"), Guarantor shall be deemed to include at all times own one hundred percent (a100%) an installment sales agreement wherein Borrower agrees to sell of the Property or any part thereof or interest therein for a price to be paid membership interests in installments; (b) an agreement by Borrower for the leasing Master Tenant free of all or a substantial part liens, claims and encumbrances and Guarantor shall have the authority to make all material business decisions for Master Tenant during the term of the Property for Loan, (ii) all consents and approvals necessary or desirable in connection with the Master Tenant Acquisition (including, without limitation, all consents and approvals from the Washington Department of Social and Health Services) have been obtained from the applicable Governmental Authorities and copies thereof have been provided to Lender, (iii) Borrower gives Agent not less than five (5) days prior written notice of the closing of the Master Tenant Acquisition, (iv) Guarantor has delivered to Agent a pledge of one hundred percent (100%) of the ownership interests in Master Tenant pursuant to a pledge of membership interest substantially similar in form and substance to the Assignment of Membership Interests and any purpose legal opinions required by Lender in connection therewith, (v) Master Tenant has delivered to Agent any legal opinions required by Lender with respect to the due authorization, execution, delivery and enforceability of the Subordination Agreement and the perfection of liens granted therein in favor of Agent, and (vi) Borrower executes such documents and takes such action and causes Master Tenant and Guarantor to execute such documents and take such action as are reasonably required by Agent in connection with the Master Tenant Acquisition. Borrower shall pay to Agent upon demand all costs and expenses incurred by Agent and Lender (including, without limitation, reasonable attorney's fees and search costs) in connection with the Master Tenant Acquisition. Absent a default under this Agreement or under any of the other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporationLoan Documents, the voluntary or involuntary sale, conveyance or transfer Management Agreement may be terminated by Guarantor and Master Tenant solely in connection with the Master Tenant Acquisition. Borrower shall promptly deliver to Lender written evidence of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial intereststermination.
Appears in 1 contract
Samples: Loan Agreement (Emeritus Corp\wa\)
Due on Sale and Encumbrance; Transfers of Interests. Except (a) Without the prior approval of Agent, which may be withheld in its sole and absolute discretion, the Loan shall become due and payable upon the occurrence of any Transfer (other than a Permitted Transfer).
(b) Without limiting the foregoing, except with respect to Permitted Transfers (for which the extent permitted pursuant to Article 8, consent of Agent shall not be required):
(i) neither Borrower nor any other Restricted Party, nor any Person having a direct or indirect legal legal, beneficial or beneficial owner record ownership or economic interest in Borrower shall (a) directly or indirectly Transfer all or any portion of Borrower its, his or Master Tenant shallher interest in the Project, without the prior written consent of Lender, sell, transfer, convey, mortgage, grant, bargain, Development Project or any part thereof (including any ownership or economic interest in Borrower); (b) further encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to xxxxx x Xxxx or grant xxxxx any other interest in the Property Project or any part thereof or interest therein, (including any legal, beneficial, ownership or economic or voting interest in Borrower or any other Restricted PartyBorrower), whether directly or indirectly, voluntarily or involuntarily, by operation of law ; or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower enter into any easement or any other Restricted Party is a corporation, agreement granting rights in or restricting the voluntary use or involuntary sale, conveyance or transfer development of such corporation’s stock (the Project or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporationDevelopment Project, subject to Agent’s stock shall prior written consent (not to be vested in a party or parties who are not now stockholders or any change unreasonably withheld in the control case of such corporationsubpart (c)); and
(dii) if Borrower or any other Restricted Party is a limited or no new general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, manager or member having the ability to control the affairs of Borrower shall be admitted to or non-member manager, the voluntary or involuntary transfer of the partnership interest of created in Borrower (nor shall any existing general partner, managing partner or controlling limited partner, the creation manager, managing member or issuance of new partnership interestscontrolling member withdraw from Borrower), and no change in Borrower’s organizational documents relating to control over Borrower, the voluntary or involuntary transfer Project and/or the Development Project shall be effected. With respect to any and all Transfer(s), promptly upon any Loan Party having knowledge of the interest same, (A) if such Transfer is of any joint venturer, member twenty-five percent (25%) or nonmore of the direct or indirect interests in Borrower (or such lesser percentage as may be required from time to time under applicable Legal Requirements) and was to an ultimate beneficial owner that is domiciled in the U.S. and was not a holder of at least twenty-member managerfive percent (25%) of such interests prior to the Transfer, or (B) if such Transfer is of ten percent (10%) or more of the creation direct or issuance indirect interests in Borrower (or such lesser percentage as may be required from time to time under applicable Legal Requirements) and was to an ultimate beneficial owner that is not domiciled in the U.S. and was not a holder of new membership at least ten percent (10%) of such interests prior to the Transfer, then in either case, Borrower shall provide Agent with (a) prior notice of such Transfer, (b) sufficient information about the transferee so that Agent and the Lenders may fulfill their “know your customer” requirements (which, by way of example, may include the receipt and review of copies of operating agreements, by-laws, partnership agreements, articles of incorporation, articles of organization, certificates of formation, certificates of good standing, W-9 forms, updated organizational charts, valid governmental forms of identification and such other information or interest in any non-member manager; documentation reasonably required by Agent and the Lenders with respect to such “know your customer” requirements) and (ec) if Borrower such other information or any other Restricted Party documentation reasonably required by Agent and the Lenders from time to time with respect to such “know your customer” requirements, and such Permitted Transfer shall be conditioned upon Agent’s confirmation (which confirmation shall not be unreasonably delayed) that such transferee is neither an Embargoed Person, a trust Prohibited Person or nominee trusta restricted person described in Article 13, failing which such proposed Permitted Transfer shall be void ab initio. Notwithstanding anything herein to the voluntary or involuntary transfer of contrary, in no event shall the legal or beneficial interest reporting requirements described in such trust or nominee trust or this Section 8.1 apply to Transfers occurring by shareholders at the creation or issuance of new legal or beneficial interestspublic company level.
Appears in 1 contract
Samples: Term Loan Agreement (Seaport Entertainment Group Inc.)
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of LenderAgent,
(a) No Borrower or Principal nor any other Person having a direct or indirect ownership or beneficial interest in any Borrower or Principal shall
(i) create, sellor permit the creation of, any new direct or indirect ownership interest in any Borrower or Principal, or
(ii) transfer, conveyor permit the transfer of (A) all or any part of the Projects, mortgageor any interest therein (other than Leases permitted hereunder), grantor (B) any direct or indirect ownership interest in any Borrower or any Principal (including any interest in the profits, bargainlosses or cash distributions in any way relating to the Projects, any Borrower or any Loan Party), or
(iii) subject to Borrowers’ contest rights under Section 7.3, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to xxxxx x Xxxx or grant xxxxx any other interest in the Property any Project or any part thereof (other than Leases permitted hereunder) or interest therein, including any legal, beneficial, economic take or voting interest in Borrower or fail to take any other Restricted Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested action which would result in a party Lien against the Projects or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest Borrower in any non-member manager; Project, whether voluntarily or involuntarily except Liens in favor of Agent for the benefit of Lender and Agent, or
(eiv) if Borrower enter into any easement or other agreement granting rights in or restricting the use or development of any Project.
(b) Notwithstanding the foregoing provisions of this Section 7.2 or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer provisions of the legal Loan Documents, direct or beneficial interest indirect ownership interests in Borrowers may be sold or transferred so long as no Potential Default or Event of Default exists and after any such trust or nominee trust transaction (a) Borrowers continue to be wholly owned by Managing Member, and (b) either Cornerstone Principal or the creation or issuance of new legal or beneficial interestsRSC Principals holds a Controlling Interest in the Managing Member.
Appears in 1 contract
Samples: Loan Agreement (Cornerstone Healthcare Plus Reit, Inc.)
Due on Sale and Encumbrance; Transfers of Interests. (1) Except to as permitted by the extent permitted pursuant to Article 8provisions of this Agreement or the other Loan Documents, neither no Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallParty will, without the prior written consent of Lenderthe Required Lenders, sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property permit or any part thereof or interest therein for a price to be paid in installments; suffer (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) any sale, assignment, conveyance, transfer or the creation other disposition of any legal or issuance of new stock such that such corporation’s stock shall be vested equitable interests in a party or parties who are not now stockholders all or any change part of its applicable Individual Property (a “Property Transfer”), (b) permit or suffer (by operation of law or otherwise) any mortgage, Lien or other encumbrance of all or any part of the Individual Property other than the Permitted Encumbrances, (c) permit or suffer (by operation of law or otherwise) any sale, assignment, conveyance, transfer or other disposition of any direct or indirect interest in the control of such corporation; any Borrower (an “Equity Transfer”), (d) if permit or suffer (by operation of law or otherwise) any pledge, hypothecation, creation of a security interest in or other encumbrance of any direct or indirect interest in any Borrower Party, (e) file a declaration of condominium with respect to any Individual Property or (f) grant any easement or other agreement granting rights in or restricting the use or development of any Individual Property (each action described in clauses (a), (b), (c), (d), (e), (f) and (g) of this Section 9.1(1) is a “Prohibited Transfer”).
(2) A Property Transfer of any Individual Property subject to the Lien of the Mortgage (but not a mortgage, Lien or other encumbrance on the applicable Individual Property other than the Permitted Encumbrances) is permitted, provided that each of the following conditions are satisfied:
a. no Event of Default shall have occurred and be continuing and such Property Transfer shall not result in an Event of Default;
b. Borrowers shall give or cause to be given written notice to Administrative Agent of the proposed Property Transfer not later than thirty (30) days prior thereto, which notice shall set forth the name of the Transferee and set forth the date the Property Transfer is expected to be effective;
c. the Person (the “Transferee”) to whom the applicable Individual Property is sold or conveyed in the Property Transfer (i) satisfies the requirements of a Single Purpose Entity, (ii) is not, nor any of its constituent equity owners (other than Public Shareholders) are, a Prohibited Person, and (iii) is, and all of its constituent equity owners (other than Public Shareholders) that own more than ten percent (10%) of the outstanding interests in the Transferee are, in good standing in its state or country of organization;
d. after giving effect to such Property Transfer, (i) Parent Guarantor owns 100% of the direct or indirect Equity Interests (other than de minimis preferred shares or limited partnership interests) in the Transferee and (ii) the Transferee is controlled, directly or indirectly, by Parent Guarantor;
e. following such Transfer the applicable Individual Property will be self‑managed by the Transferee or managed by a Qualified Manager;
f. the Transferee shall execute a Borrower Accession Agreement, effective as of the date of the Property Transfer and shall deliver or cause to be delivered a solvency certificate, such legal opinions and title insurance endorsements as may be reasonably requested by Administrative Agent and Borrowers (including the Transferee) shall execute replacement Notes;
g. Borrowers shall have delivered or shall have caused the Transferee to deliver such documentation and other evidence as is reasonably requested by Administrative Agent (for itself or on behalf of any Lender) or any Lender for Administrative Agent or such Lender to carry out and be satisfied that it has complied with all necessary “know your customer” or other similar checks under all Applicable Laws;
h. the proposed Property Transfer will not result in a violation of any of the covenants contained herein relating to compliance with ERISA, the Patriot Act, the Executive Order, Anti-Corruption Laws and applicable Sanctions, and Borrowers shall deliver or cause the proposed Transferee to deliver to Administrative Agent such documentation of compliance as Administrative Agent shall reasonably request. Upon satisfaction of each of the conditions set forth in this Section 9.1(2), (i) Administrative Agent shall release the applicable Borrower from any liability thereafter arising under the Loan Documents to which the applicable Borrower is a party and (ii) the applicable Borrower shall release Administrative Agent, Arrangers and the Lenders from any claims against Administrative Agent, Arrangers and the Lenders arising in connection with the Loans prior to the date of such Property Transfer, such releases to be self‑operative without the need for any additional release in writing.
(3) An Equity Transfer (but not a pledge, hypothecation, creation of a security interest in or other encumbrance) of any direct or indirect interests in any Borrower is permitted, provided that the following conditions are satisfied:
a. after giving effect to such Equity Transfer, (i) Parent Guarantor owns 100% of the direct or indirect Equity Interests (other than de minimis preferred shares or limited partnership interests) in the applicable Borrower and (ii) the applicable Borrower is controlled, directly or indirectly, by Parent Guarantor;
b. after giving effect to such Equity Transfer, the applicable Individual Property will be self‑managed by the applicable Borrower or managed by a Qualified Manager, Parent Guarantor or an Affiliate of Parent Guarantor;
c. immediately prior to such Equity Transfer, no Event of Default has occurred and is continuing;
d. the proposed Equity Transfer will not result in a violation of any of the covenants contained herein relating to compliance with ERISA, the Patriot Act and the Executive Order, and Borrowers shall deliver or cause the proposed transferee to deliver to Administrative Agent such documentation of compliance as Administrative Agent shall reasonably request;
e. Borrowers shall give or cause to be given written notice to Administrative Agent of the proposed Equity Transfer not later than fifteen (15) days prior thereto; and
f. the proposed transferee (i) is not, nor any of its constituent equity owners (other than Public Shareholders) are, a Prohibited Person and (ii) is, and all any of its constituent equity owners (other than Public Shareholders) that own more than ten (10%) of the outstanding interests in the transferee are, in good standing in its state or country of organization.
(4) Nothing contained in this Agreement or in any other Loan Document shall restrict the right of (a) any shareholder in Parent Guarantor or in any other Person, the shares of whom are traded on the New York Stock Exchange or any other Restricted Party is nationally or internationally recognized exchange, to sell, assign, convey, transfer, pledge, hypothecate, create a security interest in or otherwise dispose of such shares or cause its shares to be redeemed, or (b) any limited partner or general partnershippreferred shareholder of any subsidiary Affiliate of Parent Guarantor to sell, joint venture assign, convey, transfer, pledge, hypothecate, create a security interest in or otherwise dispose of its limited liability companypartnership interest or preferred shares in such Person or to cause or permit its limited partnership interest or preferred shares in such Person to be redeemed.
(5) Notwithstanding anything to the contrary contained in this Section 9.1, any owner of any direct or indirect ownership interests in any Borrower may sell, assign, convey, transfer, pledge, hypothecate, create a security interest in or otherwise dispose of its interest in the changeapplicable Borrower to or in favor of an Approved Entity in one or a series of transactions, removaland the holder of such interest may exercise any remedies or rights pursuant to such pledge or security instrument without Administrative Agent’s consent, resignation or addition provided that (a) after giving effect to such sale, assignment, conveyance, transfer, pledge, hypothecation, creation of a general partnersecurity interest in or other disposition of its interest in the applicable Borrower or other disposition, managing partner, limited partner, joint venturer, member and after the exercise of any remedies or non-member manager, rights pursuant to such pledge or security instrument (assuming the voluntary or involuntary transfer of the partnership interest pledged interests to the pledgee), 100% of any general partner, managing partner the direct or indirect Equity Interests (other than de minimis preferred shares or limited partner, the creation or issuance of new partnership interests) in the applicable Borrower will be owned directly or indirectly by Parent Guarantor and the applicable Borrower will be controlled, directly or indirectly, by Parent Guarantor, and (b) at all times the voluntary applicable Individual Property is managed by a Qualified Manager.
(6) Notwithstanding anything to the contrary contained in this Section 9.1, Parent Guarantor and/or GGP Nimbus or involuntary transfer GGPLP (or an entity that owns a direct or indirect interest in GGP Nimbus or GGPLP) may, as security for operating debt incurred or to be incurred by such Person, in one or a series of transactions, pledge, hypothecate, grant of a security interest or other encumbrance to a Qualified Pledgee in such Person’s respective assets (excluding any collateral for the interest of any joint venturer, member Loans or non-member manager, a direct or the creation or issuance of new membership interests or indirect interest in any non-member manager; Borrower (other than any direct or indirect interest in GGP Nimbus or GGPLP)) and the holder of such pledge or security interest may exercise any remedies or rights pursuant to such pledge or security instrument without Administrative Agent’s consent, provided that at all times (a) the Property shall be managed by a Qualified Manager, (b) 100% of the direct or indirect Equity Interests (other than de minimis preferred shares or limited partnership interests) in each Borrower will be owned directly or indirectly by Parent Guarantor and (ec) if each Borrower will be controlled, directly or indirectly, by Parent Guarantor.
(7) Notwithstanding anything herein to the contrary, any Borrower may, without the consent of Administrative Agent (A) record lot line adjustments, (B) subdivide the applicable Individual Property, or (C) enter into any reciprocal easement agreements, utility easements, access easements or other similar agreements (collectively, “Property Documents”) relating to the use or development of the applicable Individual Property or reasonably required in connection with a Partial Release permitted hereunder pursuant to Section 2.6, provided that (i) no such Property Document shall materially impair the utility and operation of the applicable Individual Property or otherwise have a Material Adverse Effect as to any Individual Property and (ii) the applicable Borrower shall deliver to Administrative Agent an executed copy of the applicable Property Document promptly following execution thereof. In connection with any action permitted pursuant to this Section 9.1(6) or for any other lot line adjustments, subdivisions or other Property Documents for which Borrower requests Administrative Agent’s consent thereto, such consent shall not be unreasonably withheld and, upon such consent or otherwise upon request, Administrative Agent shall execute and deliver any instrument reasonably necessary or appropriate in order to subordinate the Lien of the Mortgage and the other Loan Documents to such Property Documents upon receipt by Administrative Agent of:
a. a copy of the applicable Property Document, which Property Document shall be reasonably acceptable to Administrative Agent and shall automatically inure to the benefit of (and burden) successors and assigns of the applicable Borrower; and
b. an Officer’s Certificate stating that such lot line adjustments, subdivisions or Property Documents do not, in any case, materially impair the utility and operation of the applicable Individual Property or have a Material Adverse Effect on such applicable Individual Property’s value.
(8) Administrative Agent shall not be required to demonstrate any actual impairment of its security or any other Restricted Party is increased risk of default under any Loan Document in order to declare the Debt immediately due and payable upon a trust or nominee trust, the Prohibited Transfer which occurs in violation of this Agreement. This provision shall apply to every Prohibited Transfer which occurs in violation of this Agreement regardless of whether voluntary or involuntary transfer not, or whether or not the Required Lenders have consented to any previous Prohibited Transfer.
(9) The consent by the Required Lenders to one Prohibited Transfer shall not be deemed to be a waiver of the legal right of the Required Lenders to require such consent to any future occurrence of same.
(10) Any Prohibited Transfer made in contravention of this Section 9.1 shall be null and void and of no force and effect.
(11) Borrowers agree to bear and shall pay or beneficial interest reimburse Administrative Agent on demand for all actual and reasonable out‑of‑pocket expenses (including reasonable attorneys’ fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Administrative Agent and the Lenders in such trust or nominee trust or connection with the creation or issuance review, approval and documentation of new legal or beneficial interestsany transfer.
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. (a) Except to the extent permitted pursuant to as provided in Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallVIII hereof, without the prior written consent of LenderLxxxxx, neither Borrower nor any other Person having a direct or indirect ownership or beneficial interest in Borrower shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignassign or transfer any interest, alienatedirect or indirect, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof)Borrower, grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partythereof, whether directly or indirectly, voluntarily or involuntarily, by operation in violation of law or otherwise the covenants and conditions set forth in the Mortgage and this Agreement (eachcollectively, a “Transfer”). .
(b) A Transfer within the meaning of this Section 4.2.1 shall include, but not be deemed to include limited to, (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part substantially all of the Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer Transfer of, or the grant of a security interest in, BorrowerBxxxxxxx’s right, title and interest in and to any Leases or any Rents; (ciii) if a Person owning a direct or indirect interest in Borrower or any other Restricted Party is a corporation, the voluntary any merger, consolidation or involuntary sale, conveyance Sale or transfer Pledge of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in one or a party or parties who are not now stockholders or any change in the control series of such corporationtransactions; (div) if a Person owning a direct or indirect interest in Borrower or any other Restricted Party is a limited or general partnershippartnership or joint venture, joint venture any merger or limited liability company, consolidation or the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary Sale or involuntary transfer Pledge of the partnership interest of any general partner, managing or limited partner or limited partner, any profits or proceeds relating to such partnership interests or the creation or issuance of new limited partnership interests; (v) if a Person owning a direct or indirect interest in Borrower is a limited liability company, any merger or consolidation or the voluntary change, removal, resignation or involuntary transfer addition of the interest of any joint venturer, a managing member or non-member managermanager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest or the creation or issuance of new membership interests interests, or Borrower dividing into two (2) or more separate entities and allocating any of Borrower’s assets, liabilities, rights and/or obligations between or among such entities; (vi) if a Person owning a direct or indirect interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, any merger, consolidation or the voluntary Sale or involuntary transfer Pledge of the legal or beneficial interest in such trust a Person owning a direct or nominee trust indirect interest in Borrower or the creation or issuance of new legal or beneficial interests; (vii) a Change in Control; (viii) entering into any PACE Loan; (ix) any action for partition of the Property (or any portion thereof or interest therein) or any similar action instituted or prosecuted by Borrower or by any other Person, pursuant to any contractual agreement or other instrument or under applicable Legal Requirements (including, without limitation, common law); and (x) with respect to any limited liability company or limited partnership, the division of any assets and liabilities of such entity amongst one or more new or existing entities.
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without (a) Without the prior written consent of LenderAgent, neither Borrower, Security Guarantor, nor any other Person having a direct or indirect ownership or beneficial interest in Borrower or Security Guarantor shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignLien, alienateassign or transfer any interest, lease (except to Tenants under Leases that are not direct or indirect, in violation of Section 4.1.10 hereof)a Restricted Party, grant any option with respect to or grant any other interest in the Individual Property or any material part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partythereof, whether directly or indirectly, voluntarily or involuntarily, by operation in violation of law or otherwise the covenants and conditions set forth in the Security Instrument and this Agreement (eachcollectively, a “Prohibited Transfer”). A .
(b) Subject to Section 8.2, a Prohibited Transfer within the meaning of this Section 4.2.1 shall include, but not be deemed to include limited to, (ai) an installment sales agreement wherein Borrower Security Guarantor agrees to sell the any Individual Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the Security Guarantor leasing of all or a substantial part of the any Individual Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder (or occupancy by a hotel guest, including hotel guests that have booked arrangements through room/bed block agreements entered into in the ordinary course of business) or a sale, assignment or other transfer of, or the grant of a security interest in, BorrowerSecurity Guarantor’s right, title and interest in and to any Leases or any Rents; (ciii) if Borrower or any other a Restricted Party is a corporation, the voluntary any merger, consolidation or involuntary sale, conveyance Sale or transfer Pledge of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in one or a party or parties who are not now stockholders or any change in the control series of such corporationtransactions; (div) if Borrower or any other a Restricted Party is a limited or general partnershippartnership or joint venture, joint venture any merger or limited liability company, consolidation or the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary Sale or involuntary transfer Pledge of the partnership interest of any general partner, managing or limited partner or limited partner, the creation any profits or issuance of new proceeds relating to such partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, interests or the creation or issuance of new membership interests limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or interest in any consolidation or the change, removal, resignation or addition of a managing member or non-member managermanager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; and (evi) if Borrower or any other a Restricted Party is a trust or nominee trust, any merger, consolidation or the voluntary Sale or involuntary transfer Pledge of the legal or beneficial interest in such trust or nominee trust a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 7.3 hereof; (viii) any action for partition of the Property (or any portion thereof or interest therein) or any similar action instituted or prosecuted by Borrower or by any other person or entity, pursuant to any contractual agreement or other instrument or under applicable law (including, without limitation, common law), or (ix) the entering into of a PACE Transaction.
(c) Agent reserves the right to condition the consent to a Prohibited Transfer requested hereunder (which shall exclude any Permitted Transfers made in accordance with this Agreement) upon (a) a modification of the terms hereof and an assumption of this Agreement and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) if the Loan will be assumed by a third party, the payment of an assumption fee of 1% of outstanding principal balance of the Loan and all of Agent’s and Lender’s reasonable out-of-pocket expenses incurred in connection with the approval thereof, (c) intentionally omitted, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement, including, without limitation, the covenants in Sections 3.1.24 and 4.2.11 hereof, (e) the ability of the transferee to satisfy Agent’s and Lender’s then current underwriting standards, and/or (f) such other conditions and/or legal opinions as Agent shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Agent and/or Lender shall be payable by Borrower and/or Security Guarantor whether or not Agent consents to the Prohibited Transfer. Agent shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer without Agent’s consent. This provision shall apply to every Prohibited Transfer, whether or not Agent has consented to any previous Prohibited Transfer.
(d) Notwithstanding the foregoing, Agent’s consent shall not be required in connection with the conveyance of the Release Parcel to JCSD Trustee Services Limited, or such other nominee as Sagicor Life Jamaica Limited shall indicate, and such conveyance shall not constitute a Prohibited Transfer. Agent shall duly execute and deliver to Jamaica Security Guarantor a Partial Discharge of Charge and Authority to Complete Missing Information substantially in the form of the documents set forth on Exhibit 3 attached hereto, and such other documents as may be reasonably required to effect the release of the Release Parcel (such additional documents, if any, to be in form and substance reasonably acceptable to the parties thereto), together with the relevant certificates of title necessary to effect the release of the Release Parcel free of the Liens and security interests created by the applicable Security Instruments, with power to deliver such documents to the attorneys for Sagicor Life Jamaica Limited on or before the signing hereof. Agent shall further reasonably cooperate with Borrower and Security Guarantor in executing such other documents and instruments and doing all such other acts and things as may be reasonably required to effect the conveyance of the Release Parcel as aforesaid..
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. (a) Except to the extent as otherwise expressly permitted pursuant to and in accordance with the terms of Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall8 hereof, without the prior written consent of Lender, neither Borrower nor any other Person having a direct or indirect ownership or beneficial interest in Borrower shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignLien, alienateassign or transfer any DMEAST #17478116 v7 46
(b) A Prohibited Transfer shall include, lease but not be limited to, (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s 's right, title and interest in and to any Leases or any Rents; (ciii) if Borrower or any other a Restricted Party is a corporation, the voluntary any merger, consolidation or involuntary sale, conveyance Sale or transfer Pledge of such corporation’s 's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in one or a party or parties who are not now stockholders or any change in the control series of such corporationtransactions; (div) if Borrower or any other a Restricted Party is a limited or general partnershippartnership or joint venture, joint venture any merger or limited liability company, consolidation or the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary Sale or involuntary transfer Pledge of the partnership interest of any general partner, managing or limited partner or limited partner, the creation any profits or issuance of new proceeds relating to such partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, interests or the creation or issuance of new membership interests or interest in any non-member managerlimited partnership interests; and (ev) if Borrower a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any other profits or proceeds relating to such membership interest; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the voluntary Sale or involuntary transfer Pledge of the legal or beneficial interest in such trust or nominee trust a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 7.3 hereof; (viii) any action for partition of the Property (or any portion thereof or interest therein) or any similar action instituted or prosecuted by Borrower or by any other person or entity, pursuant to any contractual agreement or other instrument or under applicable law (including, without limitation, common law) and/or (ix) any other action instituted by (or at the behest of) Borrower or its Affiliates or consented to or acquiesced in by Borrower or its Affiliates which results in a termination of any REA or any Material Agreements, which termination causes a Material Adverse Effect.
(c) Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and an assumption of this Agreement and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) payment of a transfer fee of 1% of outstanding principal balance of the Loan and all of Lender's expenses incurred in connection with such Prohibited Transfer, (c) if required by Lender, receipt of a Rating Agency Confirmation with respect to the Prohibited Transfer, (d) the proposed transferee's continued compliance with the covenants set forth in this Agreement, including, without limitation, the covenants in Sections 3.1.24 and 4.2.11 hereof, (e) omitted, (f) the ability of the transferee to satisfy Lender's then current underwriting standards, (g) an opinion satisfactory to Lender that the Prohibited Transaction will not cause an Adverse REMIC Event and/or (h) such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer DMEAST #17478116 v7 47
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except (1) Without the prior written consent of the Administrative Agent and the Lenders (to the extent permitted pursuant to Article 8, required under Section 12.2):
(a) neither Borrower nor any other Restricted Party, nor any direct or indirect legal Person having an ownership or beneficial owner of interest in Borrower shall (i) directly or Master Tenant shall, without the prior written consent of Lender, indirectly sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignor assign any interest in the Project or any part thereof (including any partnership, membership or any other ownership interest in Borrower); (ii) further encumber, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to xxxxx x Xxxx or grant xxxxx any other interest in the Property Project or any part thereof or interest therein, (including any legalpartnership, beneficial, economic membership or voting other ownership interest in Borrower or any other Restricted PartyBorrower), whether directly or indirectly, voluntarily or involuntarily, by operation ; or (iii) enter into any easement or other agreement granting rights in or restricting the use or development of law or otherwise the Project;
(each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 b) no new member shall be deemed admitted to include or created in Borrower (nor shall any existing partner or member withdraw from Borrower), and no change in Borrower’s organizational documents relating to control over Borrower and/or the Project shall be effected; and
(c) there shall be no Change of Control of Borrower’s Managing Member or Borrower’s Managing Member’s General Partner.
(2) Notwithstanding the provisions of Section 9.1(1), (a) prior to the Completion Date, Sponsor shall be permitted to transfer a portion of its direct or indirect ownership interests in Borrower to an installment sales agreement wherein Approved Transferee, so long as (i) at the time of such transfer there exist no monetary defaults or Events of Default under the Loan Documents, (ii) at the time of such transfer no Low DSCR Trigger Period exists, (iii) at all times following such transfer, Sponsor continues to own not less than fifty-one percent (51%) of the direct or indirect ownership interests in Borrower, and (iv) at all times following such transfer, Sponsor continues to Control Borrower agrees to sell the Property and there is no Change of Control of Borrower’s Managing Member or any part thereof or interest therein for a price to be paid in installmentsBorrower’s Managing Member’s General Partner; and (b) after the Completion Date, Sponsor shall be permitted to transfer a portion of its direct or indirect ownership interests in Borrower to an agreement Approved Transferee, so long as (i) at the time of such transfer there exist no monetary defaults or Events of Default under the Loan Documents, (ii) at the time of such transfer no Low DSCR Trigger Period exists, (iii) at all times following such transfer, Sponsor owns at least twenty percent (20%) of the direct or indirect ownership interests in Borrower, (iv) at all times following such transfer, Sponsor continues to Control Borrower and there is no Change of Control of Borrower’s Managing Member or Borrower’s Managing Member’s General Partner, and (v) at all times following such transfer Sponsor or an Affiliate is Manager.
(3) Notwithstanding the foregoing, Sponsor may pledge its direct or indirect ownership interests in Borrower as security for Sponsor’s obligations under its primary credit facility; provided that (i) such pledge shall not be subject to foreclosure, nor shall there be any conveyance in lieu thereof, nor shall there be any other action in respect of such pledged interests inconsistent with the consent and acknowledgement referred to in clause (iii) below, without the Administrative Agent’s prior written consent; (ii) such pledge, by Borrower its express terms, shall be subject to the limitations on foreclosure and conveyance in lieu thereof set forth above; and (iii) the pledgee shall deliver such acknowledgments of and consents to the foregoing as the Administrative Agent may request. Without limiting the foregoing, if Eurohypo exercises the Mezzanine Option, the pledgee shall release its pledge on any of the ownership interest that form the collateral for the leasing Mezzanine Loan (without limiting the rights of all or a substantial part of Sponsor, in accordance with this Section 9.1(3), to pledge to such pledgee other indirect ownership interests in Borrower that do not form the Property collateral for the Mezzanine Loan).
(4) Notwithstanding anything to the contrary set forth in this Section 9.1, the transfers restricted hereunder shall not include (i) any purpose other than the actual occupancy by a space tenant thereunder or a conveyance, assignment, sale, assignment or other transfer ofmortgaging, or the grant encumbrance, pledging, hypothecation, granting of a security interest in, granting of options with respect to, or other disposition (including in connection with any merger or consolidation) of any limited partnership interests in Borrower’s rightManaging Member (provided that after giving effect thereto Borrower’s Managing Member’s General Partner continues to Control Borrower’s Managing Member), title and or of any publicly traded stock in Borrower’s Managing Member’s General Partner, or (ii) the conveyance, assignment, sale, pledge, hypothecation, granting of a security interest in, granting of options with respect to, or other disposition of stock in and Borrower’s Managing Member’s General Partner, provided that, in the case of either clause (i) or clause (ii) above, (A) after giving effect to any Leases such conveyance, assignment, sale or any Rents; (c) if Borrower or any other Restricted Party is a corporationdisposition, the voluntary common stock of Borrower’s Managing Member’s General Partner shall be listed and traded on the New York Stock Exchange or involuntary other nationally recognized stock exchange and (B) in the event that more than forty nine percent (49%) of the common stock in Borrower’s Managing Member’s General Partner is conveyed, assigned, sold or otherwise disposed of, whether in one or a series of transactions, to any Person or Persons acting as a group, and as a result thereof, such Person or Persons have the power to elect, appoint or cause the election or appointment of at least a majority of the members of the Board of Directors of Borrower’s Managing Member’s General Partner, through beneficial ownership of the capital stock of Borrower’s General Partner’s Managing Member or otherwise, the prior written consent of the Administrative Agent and the Majority Lenders thereto shall have been obtained, which consent shall not be unreasonably withheld, conditioned or delayed.
(5) As used in this Section 9.1: (a)“transfer” shall include the sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnershiptransfer, joint venture or limited liability companyconveyance, the changemortgage, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member managerpledge, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer assignment of the legal or beneficial ownership of (i) the Project, (ii) any partnership interest in any general partner in Borrower that is a partnership, (iii) any membership interest in any member in Borrower that is a limited liability company and (iv) any voting stock in any general partner in Borrower that is a corporation; “transfer” shall not include (x) the leasing of any space within the Project so long as Borrower complies with the provisions of the Loan Documents relating to such trust leasing activity; or nominee trust (y) the transfers of non-managing membership interests in Borrower so long as the provisions of Section 9.1(2) are satisfied; and (b) “Control” of one Person (the “controlled Person”) by another Person (the “controlling Person”) shall mean the possession, directly or indirectly, by the creation controlling Person of the power or issuance ability to direct or cause the direction of new legal the management or beneficial interestspolicies of the controlled Person, subject to approvals for customary major decisions, whether through the ability to exercise voting power, by contract or otherwise (“Controlled” and “Controlling” each have the meanings correlative thereto).
Appears in 1 contract
Samples: Construction Loan Agreement (Maguire Properties Inc)
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant Party shall, without the prior written consent of Lender, sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member venturer or non-member managermember, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new limited partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, venturer or member or non-member manager, or the creation or issuance of new membership interests or interest in any non-managing member managerinterests; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interests.
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. (1) Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallfor Permitted Transfers, without the prior written consent of Lender, sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease the Administrative Agent and the Lenders (except to Tenants the extent required under Leases that are not in violation of Section 4.1.10 hereof12.2), grant no Transfer shall occur or be permitted, nor shall Borrower enter into any option easement or other agreement granting rights in or restricting the use or development of the Project;
(2) Without limiting the foregoing, the conveyance of all of the Projects (or all of the Projects owned by Borrower) to a Controlled Subsidiary which is a Single Purpose Entity and which assumes all of the obligations of the Borrower under the Loan Documents in form and substance satisfactory to the Administrative Agent and in recordable form shall be permitted subject to the following terms and conditions:
(a) the Controlled Subsidiary and the general partner, manager or managing member of such Controlled Subsidiary, after giving effect to such Transfer, is in compliance with respect to or grant any other interest in all of the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in covenants of the Borrower or any Borrower Party (as applicable) contained in the Loan Documents (with all references herein to “Borrower” to mean such Controlled Subsidiary, and all references herein to “Borrower’s Manager” to mean any general partner, manager or managing member of the Controlled Subsidiary;
(b) no Potential Default or Event of Default is then existing or would result therefrom;
(c) upon the transfer of such Projects to such Controlled Subsidiary, such Controlled Subsidiary, and the general partner, manager or managing member of such Controlled Subsidiary are in compliance in all material respects with all of the representations and warranties of the Borrower or applicable to the Borrower’s Manager contained herein and in the other Restricted PartyLoan Documents (after giving effect to the modifications reflecting the identity of the transferee resulting from such transfer) (with all references herein to “Borrower” to mean such Controlled Subsidiary, whether and all references herein to “Borrower’s Manager” to mean any general partner, manager or managing member of the Controlled Subsidiary);
(d) such Projects shall be managed by the REIT or any property management company owned or controlled directly or indirectlyindirectly by the REIT;
(e) prior to such Transfer, voluntarily the Administrative Agent shall have received notice of the proposed transferee and, within thirty (30) days after the date of such Transfer, the Administrative Agent shall have received copies of the Organizational Documents of such Controlled Subsidiary and the general partner, manager or involuntarilymanaging member of such Controlled Subsidiary;
(f) concurrently with such Transfer, the Administrative Agent shall have received such endorsements to the Title Policies insuring the continued priority of the Liens of the applicable Mortgages after giving effect to the delivery by operation such entity of law the assumption agreement referred to above (subject only to Permitted Encumbrances), in form and substance satisfactory to the Administrative Agent;
(g) the assumption agreement to be entered into by the Borrower and the Controlled Subsidiary shall include such modifications to this Agreement and the other Loan Documents as the Administrative Agent may reasonably require, including, without limitation, such modifications to the covenants and other provisions that are contained herein and that relate to the Borrower or otherwise (eachBorrower’s Manager, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 as shall be deemed necessary by the Administrative Agent to include (a) an installment sales agreement wherein Borrower agrees allocate to sell the Property Controlled Subsidiary and its general partner or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower manager responsibility for the leasing of all or a substantial part performance of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer covenants of, and satisfaction of the other provisions set forth herein that relate to, the Borrower or the grant of a security interest in, Borrower’s right, title and interest Manager; and
(h) upon compliance with the foregoing requirements in and to any Leases or any Rents; (cthis Section 8.1(2) if Borrower or any other Restricted Party is a corporationin connection with such Transfer, the voluntary or involuntary saleBorrower, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested released from its obligations under the Loan Documents arising from and after such Transfer, but such release shall not limit the obligations of the Borrower to comply with any requirements applicable to it (if any) in a party or parties who are not now stockholders or any change other capacities (including, without limitation, in capacities such as the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer manager of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsControlled Subsidiary).
Appears in 1 contract
Samples: Loan Agreement (Douglas Emmett Inc)
Due on Sale and Encumbrance; Transfers of Interests. (a) Except to the extent permitted pursuant to as provided in Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallVIII hereof, without the prior written consent of Lender, neither Borrower nor any SPE Party having a direct or indirect ownership or beneficial interest in Borrower shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assigndivide into two (2) or more limited liability companies or other legal entities, alienateassign or transfer any interest, lease (except to Tenants under Leases that are not direct or indirect, in violation of Section 4.1.10 hereof)a Restricted Party, grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partythereof, whether directly or indirectly, voluntarily or involuntarilyinvoluntarily (collectively, by operation of law or otherwise (each, a “Prohibited Transfer”). .
(b) A Prohibited Transfer within the meaning of this Section 4.2.1 shall include, but not be deemed to include limited to, (ai) an installment sales agreement wherein any Borrower agrees to sell the any Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by any Borrower for the leasing of all or a substantial part of the any Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, such Borrower’s right, title and interest in and to any Leases or any Rents; (ciii) if Borrower or any other a Restricted Party is a corporationcorporation or a real estate investment trust, the voluntary any merger, consolidation, division into two (2) or involuntary sale, conveyance more legal entities or transfer Sale or Pledge of such corporation’s or real estate investment trust’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in one or a party or parties who are not now stockholders or any change in the control series of such corporationtransactions; (div) if Borrower or any other a Restricted Party is a limited or general partnershippartnership or joint venture, joint venture any merger or limited liability companyconsolidation, any division into two (2) or more legal entities or the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary Sale or involuntary transfer Pledge of the partnership interest of any general partner, managing or limited partner or limited partnerany profits or proceeds relating to such partnership interests (provided, that, for the creation or issuance avoidance of new partnership interestsdoubt, pledges of Borrower distributions by indirect owners of Borrower shall not be prohibited hereby, provided such distributions are not made by Borrower during the voluntary or involuntary transfer continuance of the interest of any joint venturer, member or non-member manager, a Cash Management Sweep Period) or the creation or issuance of new membership interests or interest in any non-member managerlimited partnership interests; and (ev) if Borrower or any other a Restricted Party is a trust limited liability company, any merger or consolidation, any division into two (2) or more legal entities or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest (provided, that, for the avoidance of doubt, pledges of Borrower distributions by indirect owners of Borrower shall not be prohibited hereby, provided such distributions are not made by Borrower during the continuance of a Cash Management Sweep Period); (vi) if a Restricted Party is a common law, statutory or nominee trust, any merger, consolidation, any division into two (2) or more legal entities or the voluntary Sale or involuntary transfer Pledge of the legal or beneficial interest in such trust or nominee trust a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of Manager (including, without limitation, RMR LLC or a Specified Manager) other than in accordance with Section 7.3; and (viii) any action for partition of any Property (or any portion thereof or interest therein) or any similar action instituted or prosecuted by Borrower or by any other person or entity, pursuant to any contractual agreement or other instrument or under applicable law (including, without limitation, common law).
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Due on Sale and Encumbrance; Transfers of Interests. Except Notwithstanding anything to the extent permitted pursuant to Article 8, neither Borrower nor contrary contained in the organizational documents of any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallany Borrower’s managing member or general partner, without the prior written consent of Lender, Administrative Agent:
9.1.1 no Borrower nor any other Person having a direct or indirect ownership or beneficial interest in any Borrower shall (a) sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignor assign any interest in any Project or any part thereof (including any partnership or any other ownership interest in any Borrower or Borrower’s general partner or managing member); (b) further encumber, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to gxxxx x Xxxx or grant gxxxx any other interest in the Property any Project or any part thereof or interest therein, (including any legal, beneficial, economic partnership or voting other ownership interest in any Borrower or any other Restricted PartyBorrower’s general partner or managing member), whether directly or indirectly, voluntarily or involuntarily; or (c) enter into any easement or other agreement granting rights in or restricting the use or development of any Project;
9.1.2 no new general partner, by operation member or limited partner having the ability to control the affairs of law a Borrower shall be admitted to or otherwise created in any Borrower (eachnor shall any existing general partner or member or controlling limited partner withdraw from a Borrower), a “Transfer”). A Transfer within and no change in any Borrower’s organizational documents relating to control over such Borrower and/or any Project shall be effected; and
9.1.3 Notwithstanding the meaning other provisions of this Section 4.2.1 9.1, no transfer (including transfers pursuant to any Lease of other occupancy agreement involving any Project) shall be deemed permitted without the applicable Borrower demonstrating to Administrative Agent’s satisfaction the compliance of such transfer with the applicable provisions of the “Patriot Act”, as the same may hereafter be amended or which would be contrary to Article 14 hereof. As used in this Section 9.1, “transfer” shall include the sale, transfer, conveyance, mortgage, pledge or assignment of the legal or beneficial ownership of (a) an installment sales agreement wherein Borrower agrees to sell the Property any Project or any part thereof or interest therein for a price to be paid in installments; Borrower, (b) an agreement by Borrower for the leasing of all any partnership or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and membership interest in and to any Leases general partner or member in any Rents; (c) if Borrower or any other Restricted Party that is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, as applicable and (c) any voting stock in any general partner in any Borrower that is a corporation; “transfer” shall not include (i) the change, removal, resignation or addition leasing of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, individual units within any Project so long as the voluntary or involuntary transfer applicable Borrower complies with the provisions of the partnership interest Loan Documents relating to such leasing activity; or (ii) transfers of any general partnerlimited partner interests in Borrower so long as the provisions of Sections 9.1.1, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interests9.1.2 are satisfied.
Appears in 1 contract
Samples: Loan Agreement (Tarragon Corp)
Due on Sale and Encumbrance; Transfers of Interests. Except to Borrower acknowledges that Lender has examined and relied on the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner experience of Borrower and its stockholders, general partners and members, as applicable, and principals of Borrower in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or Master Tenant shallthe performance of the Other Obligations, Lender can recover the Debt by a sale of the Property. Therefore, without the prior written consent of Lender, but, in each instance, subject to the provisions of Article 7, neither Borrower nor SPC Party nor any other Person having a direct or indirect ownership or beneficial interest in Borrower or SPC Party shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to assign or grant any other interest in transfer the Property or any part thereof thereof, or interest thereinany interest, including any legaldirect or indirect, beneficial, economic or voting interest in Borrower or any other Restricted SPC Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 4.2 shall be deemed to include (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (ciii) if Borrower, Guarantor or any general partner, managing member or controlling shareholder of Borrower or any other Restricted Party Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders stock; (iv) if Borrower, SPC Party, any Guarantor or any change in the control general partner, managing member or controlling shareholder of such corporation; (d) if Borrower Borrower, SPC Party, or any other Restricted Party Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, venturer or member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, partner or the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturerventurer or member; (v) if the Manager is an Affiliate of the Borrower, member the ownership, management or non-member manager, or the creation or issuance control of new membership interests or interest in any non-member managerManager is transferred; and (evi) if any pledge, hypothecation, assignment, transfer or other encumbrance of any direct or indirect ownership interest in Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsSPC Party.
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without (a) Without the prior written consent of LenderAgent, sellBorrower shall not nor shall any other Person having a direct or indirect ownership or beneficial interest in Borrower:
(i) Except as expressly permitted by clause (c) of this Section 7.2, except as otherwise permitted herein or by the Assignment of Membership Interests create, or permit the creation of, any new direct or indirect ownership interest in Borrower, or
(ii) Except as expressly permitted by clause (c) of this Section 7.2, transfer, conveyor permit the transfer of (A) all or any part of the Project, mortgageor any interest therein (other than Leases permitted hereunder), grantor (B) except as otherwise permitted herein or by the Assignment of Membership Interests any direct or indirect ownership interest in Borrower (including any interest in the profits, bargainlosses or cash distributions in any way relating to the Project, Borrower or any Loan Party); or
(iii) subject to Borrower's contest rights under Section 7.3, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to a Lien or grant any other interest in any Project or axx xxxx xxxxeof (xxxxr than Leases permitted hereunder) or take or fail to take any other action which would result in a Lien against any Project or the Property interest of Borrower in any Project or any part thereof or interest therein, including any legal, beneficial, economic or voting direct ownership interest in Borrower or any other Restricted PartyBorrower, whether directly or indirectly, voluntarily or involuntarilyinvoluntarily except Liens in favor of Agent for the benefit of Lender and Agent, by operation or
(iv) enter into any easement or other agreement granting rights in or restricting the use or development of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; Project.
(b) an agreement Borrower shall not, without Agent's prior written consent, permit transfers by Borrower for the leasing of all Master Tenant or a substantial part of any interest (direct or indirect) in Master Tenant requiring Borrower's or Sole Member's consent under the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, Master Lease or the grant Agreement Regarding Leases. Agent's consent under this Section 7.2(b) shall be exercised with the same level of a security interest indiscretion that Borrower and Sole Member are required to use with respect to each such transfer in exercising their applicable consent rights under the Master Lease and Agreement Regarding Leases, Borrower’s right, title and interest in and to any Leases or any Rents; respectively.
(c) if Notwithstanding anything to the contrary set forth in Subsections 7.2(a)(i) and 7.2(a)(ii) above;
(i) the direct or indirect owners of the legal and beneficial ownership interests in Guarantor may sell, transfer, assign, pledge, hypothecate or encumber their legal and beneficial ownership interests in Guarantor without the prior consent of Agent; provided that after such transaction, Borrower continues to be majority-owned and controlled (indirectly) by Guarantor;
(ii) the direct or any other Restricted Party is a corporationindirect owners of the legal and beneficial ownership interests in REIT Operator may sell, transfer, assign, pledge, hypothecate or encumber their legal and beneficial ownership interests in REIT Operator without the voluntary prior consent of Agent; provided that after such transaction, Borrower continues to be majority-owned and controlled (indirectly) by Guarantor;
(iii) the direct or involuntary saleindirect owners of the legal and beneficial ownership interests in Sole Member may sell, conveyance transfer, assign, pledge, hypothecate or transfer of such corporation’s stock encumber up to forty-nine percent (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change 49%), in the control aggregate, of the legal and beneficial ownership interests in Sole Member, without the prior consent of Agent, provided that after such corporation; transaction, Borrower continues to be majority-owned and controlled (indirectly) by Guarantor;
(iv) new ownership or equity interests may be created in Guarantor, provided that after such transaction, Borrower continues to be majority-owned and controlled (indirectly) by Guarantor;
(v) new ownership or equity interests may be created in REIT Operator, provided that after such transaction, Borrower continues to be majority-owned and controlled (indirectly) by Guarantor.
(d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, Concurrently with the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer execution of the partnership interest Loan Documents and immediately following the Conveyance and the Conversion, Guarantor and Sole Member shall consummate the Contribution. Borrower shall deliver to Agent reasonably satisfactory written evidence of such Contribution simultaneously therewith. Until such time as Guarantor's S-11 Registration Statement has been filed with the Securities and Exchange Commission and is effective (such date is referred to herein as the "S-11 Effective Date"), Borrower shall give Agent ten (10) days prior written notice of any general partnertransaction permitted by this Section 7.2(c). At all times after the S-11 Effective Date, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest Borrower shall not be required to give Agent notice of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial intereststransaction permitted by Section 7.2(c).
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except Without the prior written consent of Administrative Agent and the Lenders (to the extent permitted pursuant to Article 8required under Section 11.2), except as provided in Section 8.1(c) below:
(a) neither Borrower nor any other Restricted Party, nor any direct or indirect legal Person having an ownership or beneficial owner of interest in Borrower shall (1) directly or Master Tenant shall, without the prior written consent of Lender, indirectly sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignor assign any interest in the Portfolio or any part thereof (including any membership or any other ownership interest in Borrower); (2) further encumber, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to or grant any granx x Xxxx xx granx xxx other interest in the Property Portfolio or any part thereof or interest therein, (including any legal, beneficial, economic membership or voting other ownership interest in Borrower or any other Restricted PartyBorrower), whether directly or indirectly, voluntarily or involuntarily; or (3) enter into any easement or other agreement granting rights in or restricting the use or development of the Portfolio or any part thereof;
(b) no new general partner, by operation member, or limited partner having the ability to control the affairs of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 Borrower shall be deemed admitted to include or created in Borrower (a) an installment sales agreement wherein nor shall any existing general partner or member or controlling limited partner withdraw from Borrower), and no change in Borrower's organizational documents relating to control over Borrower agrees to sell and/or the Property Portfolio or any part thereof or interest therein for a price to shall be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; effected;
(c) if Borrower or any other Restricted Party is a corporationNotwithstanding anything in this Section 8.1 to the contrary, (i) CCPRE-Storage, LLC and Shurgard, the voluntary only members in Borrower, may transfer membership interests and the ability to control the affairs of Borrower without the prior written consent of Administrative Agent if and only if such transfers are made to each other and done pursuant to the terms and conditions of this Agreement and Borrower's Limited Liability Company Agreement in effect as of the date hereof and prompt written notice thereof is given to Administrative Agent; provided, however, that the managing member of Borrower must be approved by Administrative Agent unless it is an Affiliate of CCPRE-Storage, LLC or involuntary saleShurgard, conveyance or and (ii) any transfer of such corporation’s publicly traded stock (or in Shurgard Storage Centers, Inc. in the stock normal course of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock business shall be vested in a party or parties who are not now stockholders or any change in the control of such corporationpermitted; and
(d) if Borrower or any other Restricted Party is a limited or general partnershipCCPRE-Storage, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary LLC may transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new its membership interests or interest in any nonBorrower to an institutional investor approved in writing by Administrative Agent, such approval not to be unreasonably withheld or delayed, and, CCPRE-member manager; and (e) if Borrower Storage, LLC may pledge, hypothecate or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial otherwise leverage its membership interest in Borrower to secure financing to CCPRE-Storage, LLC; provided, however, that such trust or nominee trust or the creation or issuance of new legal or beneficial interestsfinancing does not have an unreasonable adverse effect on Borrower and prompt written notice thereof is given to Administrative Agent.
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except Without the prior written consent of Administrative Agent, which may be withheld in its sole discretion, the Loan shall become due and payable upon the occurrence of any Transfer (as defined below), except for Permitted Encumbrances and Permitted Transfers. Without limiting the foregoing, other than with respect to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shalla Permitted Transfer, without the prior written consent of LenderAdministrative Agent:
(a) neither Borrower nor any other Person having a legal or beneficial ownership or economic interest in Borrower shall: (i) Transfer, selldirectly or indirectly, transferany interest in the Property or any part thereof, conveyany Collateral or any other asset of Borrower, or mortgage, grantpledge or assign any other asset of Borrower, bargain, except for Permitted Encumbrances; (ii) further encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to xxxxx x xxxx or grant xxxxx any other interest in the Property or any part thereof thereof, whether voluntarily or interest thereininvoluntarily, including except for Permitted Encumbrances; (iii) enter into any legaleasement or other agreement granting rights in, beneficialor restricting the use or development of, the Property, except for Permitted Encumbrances; or (iv) permit any partition of the Property;
(b) except for a Permitted Transfer, neither Borrower nor any other Person having a beneficial ownership or economic or voting interest in Borrower or any other Restricted Partyshall Transfer, whether directly or indirectly, any ownership or economic interest in Borrower, or encumber, alienate, xxxxx x xxxx or xxxxx any other interest in any ownership or economic interest in Borrower, whether voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; and
(c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of no new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, manager or member having the ability to control the affairs of Xxxxxxxx shall be admitted to or non-member manager, the voluntary or involuntary transfer of the partnership interest of created in Borrower (nor shall any existing general partner, managing partner or controlling limited partner, the creation or issuance of new partnership interestsmanager, the voluntary or involuntary transfer of the interest of any joint venturer, managing member or non-controlling member managerwithdraw from Borrower), and no change in Borrower’s organizational documents relating to control over Borrower and/or the Property shall be effected that would have the effect of changing the control, direct or the creation or issuance indirect, of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsXxxxxxxx.
Appears in 1 contract
Samples: Term Loan Agreement
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of Lenderthe Administrative Agent and the Lender (to the extent required under SECTION 11.02 hereof), except in connection with Partial Releases permitted under this Agreement:
(1) Neither any Borrower nor any other Person having a direct or indirect ownership or beneficial interest in any Borrower, in BPE, or in either P&V Owner shall (a) directly or indirectly sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant or assign any option with respect to or grant any other interest in the Property any Project or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower partnership or any other Restricted Partyownership interest in any Borrower, BPE or either P&V Owner, or any rights to receive distributions from BPE, BPOP or the P&V Owners; (b) further encumber, alienate, xxxxx x Xxxx or xxxxx any other interest in any Project or any part thereof or any partnership or other ownership interest in any Borrower, BPE or either P&V Owner, or any rights to receive distributions from BPE, BPOP or the P&V Owners, whether voluntarily or involuntarily; or (c) enter into any easement or other agreement granting rights in or restricting the use or development of any Project (except for immaterial utilities and the like) or permit the same or agree to the same.
(2) No new general partner, member, or limited partner having the ability to Control the affairs of any Borrower, BPE or either P&V Owner shall be admitted to or created in any Borrower, BPE or either P&V Owner (nor shall any existing general partner or member or Controlling limited partner withdraw from any Borrower, BPE or either P&V Owner ), and no change in the organizational documents of any Borrower, BPE or either P&V Owner relating to Control over such Borrower, BPE or either P&V Owner and/or any Project shall be effected.
(3) BPPI shall at all times, whether directly or indirectly, voluntarily or involuntarilyControl the Borrowers, by BPE, the P&V Owner and the operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part and management of the Property for any purpose other than Projects, the actual occupancy by a space tenant thereunder or a JV Properties and the P&V Sale Properties.
(4) As used in this SECTION 8.01, "transfer" shall include the sale, assignment or other transfer oftransfer, conveyance, mortgage, pledge, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer assignment of the legal or beneficial ownership of (a) any Project, (b) any partnership interest in any partner in any Borrower that is a partnership, (c) any voting stock in any partner in Borrower that is a corporation, and (d) any membership interest of a member of any Borrower that is a limited liability company; PROVIDED, HOWEVER, THAT, "transfer" shall not include (i) the leasing of individual units within any Project so long as the Borrowers comply with the provisions of the Loan Documents relating to such trust leasing activity, (ii) the sale, transfer, pledge or nominee trust assignment of any limited partnership interest or non-managing member interest in any Borrower or Borrower Party or in any direct or indirect general managing member of any Borrower or Borrower Party, (iii) the creation of any Lien on any Non-Mortgaged Properties other than the P&V Sale Properties, or issuance (iv) the sale, transfer, pledge or assignment of new legal or any beneficial interestsownership interests in BPPI, (v) so long as there is no violation of SECTIONS 8.01(2), 8.01(3) and 8.03 after giving effect to the transactions described in clauses (i) through (iv) of this Section 8.01(4).
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of Lender, but, in each instance, subject to the provisions of Article 7, neither Borrower nor any other Person having a direct or indirect ownership or beneficial interest in Borrower shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to assign or grant any other interest in transfer the Property or any part thereof or interest thereinthereof, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partyinterest, direct or indirect, in Borrower, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 4.2 shall be deemed to include (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (ciii) if Borrower, Guarantor or any general partner, managing member or controlling shareholder of Borrower or any other Restricted Party Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders stock; (iv) if Borrower, any Guarantor or any change in the control general partner, managing member or controlling shareholder of such corporation; (d) if Borrower Borrower, or any other Restricted Party Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, venturer or member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, partner or the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member venturer or non-member manager, or the creation or issuance of new membership interests or interest in any non-member managermember; and (ev) if Borrower any pledge, hypothecation, assignment, transfer or other encumbrance of any other Restricted Party is a trust direct or nominee trust, the voluntary or involuntary transfer of the legal or beneficial indirect ownership interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsBorrower.
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Samples: Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of Lender, but, in each instance, subject to the provisions of Article 8 (which set forth certain permitted transfers that supersede the terms of this Section 4.2.1), none of any Borrower, SPE Party, Operating Lessee or any other Person having a direct or indirect ownership or beneficial interest in any Borrower, SPE Party or Operating Lessee shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant assign or transfer any option with respect to or grant any other interest in the Property or any part thereof or interest thereinthereof, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partyinterest, direct or indirect, in any Borrower, SPE Party or Operating Lessee, whether directly or indirectly, Pool 2 voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein any Borrower or Operating Lessee agrees to sell the any Property or any part thereof or interest therein for a price to be paid in installments; (b) other than the Operating Leases, an agreement by any Borrower or Operating Lessee for the leasing of all or a substantial part of the any Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, any Borrower’s or Operating Lessee’s right, title and interest in and to any Leases or any Rents; (c) if Borrower any Borrower, SPE Party, Operating Lessee, any Guarantor or any other Restricted Party general partner, managing member or controlling shareholder of any Borrower, SPE Party, Operating Lessee or any Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that in one or a series of transactions by which an aggregate of more than ten percent (10%) of such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower any Borrower, SPE Party, Operating Lessee, any Guarantor or any other Restricted Party general partner, managing member or controlling shareholder of any Borrower, SPE Party, Operating Lessee or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, venturer or member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, partner or the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member venturer or non-member manager, or the creation or issuance of new membership interests or interest in any non-member managermember; and (e) if Borrower any pledge, hypothecation, assignment, transfer or other encumbrance of any other Restricted Party is a trust direct or nominee trust, the voluntary or involuntary transfer of the legal or beneficial indirect ownership interest in such trust any Borrower, SPE Party or nominee trust or the creation or issuance of new legal or beneficial interestsOperating Lessee.
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Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without (a) Without the prior written consent of Lender, neither Borrower nor Operating Lessee nor any other Person having a direct or indirect ownership or beneficial interest in Borrower and/or Operating Lessee shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignLien, alienateassign or transfer any interest, lease (except to Tenants under Leases that are not direct or indirect, in violation of Section 4.1.10 hereof)a Restricted Party, grant any option with respect to or grant any other interest in the Individual Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partythereof, whether directly or indirectly, voluntarily or involuntarily, by operation in violation of law or otherwise the covenants and conditions set forth in the Security Instrument and this Agreement (eachother than Permitted Encumbrances) (collectively, a “Prohibited Transfer”). .
(b) A Prohibited Transfer within the meaning of this Section 4.2.1 shall include, but not be deemed to include limited to, (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the and/or Operating Lessee leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant Tenant thereunder (other than the Operating Lease) or a sale, assignment or other transfer of, or the grant of a security interest inin (other than Permitted Encumbrances), Borrower’s and/or Operating Lessee’s right, title and interest in and to any (A) Leases or any RentsRents or (B) REAs; (ciii) if Borrower or any other a Restricted Party is a corporation, the voluntary any merger, consolidation or involuntary sale, conveyance Sale or transfer Pledge of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in one or a party or parties who are not now stockholders or any change in the control series of such corporationtransactions; (div) if Borrower or any other a Restricted Party is a limited or general partnershippartnership or joint venture, joint venture any merger or limited liability company, consolidation or the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary Sale or involuntary transfer Pledge of the partnership interest of any general partner, managing or limited partner or limited partner, the creation any profits or issuance of new proceeds relating to such partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, interests or the creation or issuance of new membership interests limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or interest in any consolidation or the change, removal, resignation or addition of a managing member or non-member managermanager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; and (evi) if Borrower or any other a Restricted Party is a trust or nominee trust, any merger, consolidation or the voluntary Sale or involuntary transfer Pledge of the legal or beneficial interest in such trust or nominee trust a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 7.3 hereof; (viii) or any action for partition of the Property (or any portion thereof or interest therein) or any similar action instituted or prosecuted by Borrower or by any other person or entity, pursuant to any contractual agreement or other instrument or under applicable law (including, without limitation, common law) and/or (ix) any other action instituted by (or at the behest of) Borrower, Operating Lessee or their Affiliates or consented to or acquiesced in by Borrower, Operating Lessee or their Affiliates which results in a termination of an REA or any Material Agreements, which termination could reasonably be expected to result in a Material Adverse Effect.
(c) Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and an assumption of this Agreement and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) payment of a transfer fee of 1% of outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (c) if required by Lender, receipt of a Rating Agency Confirmation with respect to the Prohibited Transfer, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement, including, without limitation, the covenants in Sections 3.1.24 and 4.2.11 hereof, (e) receipt of a New Non-Consolidation Opinion with respect to the Prohibited Transfer, (f) the ability of the transferee to satisfy Lender’s then current underwriting standards, (g) an opinion satisfactory to Lender that the Prohibited Transaction will not cause an Adverse REMIC Event and/or (h) such other conditions and/or legal opinions as Lender shall determine in its reasonable discretion to be in the interest of Lender. All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer without Lender’s consent. This provision shall apply to every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer.
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Due on Sale and Encumbrance; Transfers of Interests. Except to (1) Other than those Liens created by the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallLoan Documents, without the prior written consent of Lenderthe Administrative Agent and the Lenders (to the extent required under Section 11.2), and except as expressly permitted by Section 8.1(2):
(a) neither (i) any Borrower, (ii) any Borrower Party, (iii) any other Person having a direct or indirect ownership or beneficial interest in any Borrower or any Borrower Party, nor (iv) any Person that is a manager of any Borrower or any Borrower Party shall (A) directly or indirectly sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignor assign any interest in any Individual Property or any part thereof (including any partnership, limited liability company or any other, direct or indirect, ownership or management interest in any Borrower or any Borrower Party); (B) further encumber, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to a monetary Lien or grant any other interest in the any Individual Property or any part thereof or interest therein, (including any legalpartnership, beneficiallimited liability company or management interest or other, economic direct or voting indirect, ownership interest in any Borrower or any other Restricted Borrower Party), whether directly or indirectly, voluntarily or involuntarily; or (C) enter into any easement or other agreement granting rights in or restricting the use or development of any Individual Property which materially and adversely affects the value of an Individual Property as determined by the Administrative Agent;
(b) no new general partner, by operation manager, member or limited partner shall be admitted to or created in any Borrower, any Operating Lessee or Sunstone Holdco, nor shall any existing general partner, manager, member or limited partner withdraw from any Borrower, any Operating Lessee or Sunstone Holdco, and no change in the organizational documents of law any such party shall be effected; and
(c) without limiting the provisions of Section 8.1(1)(b) above, no new general partner, manager, member or otherwise limited partner having the ability to Control the affairs of any Borrower or any Borrower Party shall be admitted to or created in any Borrower, any Borrower Party or any other Person having a direct or indirect interest (eachincluding a management or ownership interest) in any Borrower or any Borrower Party (nor shall any existing general partner, manager, member or Controlling limited partner withdraw from any Borrower, any Borrower Party or any other Person having a “Transfer”direct or indirect interest (including a management or ownership interest) in any Borrower or any Borrower Party). A Transfer within , and no change in any Borrower’s or any Borrower Party’s organizational documents relating to Control over any Borrower or any Borrower Party and/or any Individual Property shall be effected.
(2) Notwithstanding anything to the meaning of contrary contained in this Section 4.2.1 8.1, the following transfers and other transactions shall be permitted and not be deemed to include a violation or breach of the provisions of Section 8.1(1):
(a) an installment sales agreement wherein Borrower agrees to sell Releases completed in accordance with the Property or any part thereof or interest therein for a price to be paid in installments; requirements of Section 2.7.
(b) an agreement by Borrower for A one-time merger of the leasing REIT with and into a public company or privately held company, or any similar transaction involving the REIT, which shall be completed with the prior written consent of Lender, provided that:
(i) such transaction must occur, if at all, prior to the expiration of the sixtieth (60th) Loan Month,
(ii) immediately after the completion of such transaction, the tangible net worth (exclusive of goodwill) of the surviving entity shall be equal to or greater than the sum of (A) $250,000,000 plus (B) the greater of (i) eighty-five percent (85%) of the sum of the tangible net worths (exclusive of goodwill) of all or a substantial part of the Property for Borrowers on the date of this Agreement and (ii) the sum of the tangible net worths (exclusive of goodwill) of all of the Borrowers immediately prior to the closing of such transaction,
(iii) the surviving entity shall have executed and delivered to the Administrative Agent an assumption of all of Sunstone’s obligations and liabilities under the Loan Documents in form and substance satisfactory to the Administrative Agent in its sole and absolute discretion,
(iv) immediately after the completion of such transaction, the surviving entity shall be of equal or greater creditworthiness as the Borrowers and Sunstone immediately prior to the closing of such transaction,
(v) the surviving entity shall have a ratio of debt to book assets that does not exceed 60%,
(vi) the surviving entity shall be able to make all of the representations and warranties set forth in Section 6.32 hereof relating to OFAC and other Legal Requirements relating to terrorism and money laundering, and shall otherwise comply with all requirements of the Lenders and the Administrative Agent relating thereto,
(vii) the surviving entity (and its Affiliates) is not and has not been involved in any purpose other litigation with the Administrative Agent or any Lender and has not defaulted on any obligations owed to the Administrative Agent or any Lender,
(viii) the surviving entity has no less experience in the ownership and management of full service hotel assets than the actual occupancy Borrowers and their respective principals and is otherwise approved by the Administrative Agent on behalf of the Lenders,
(ix) at the closing of and as a space tenant thereunder condition to any such approved transaction, the Borrowers shall, jointly and severally, pay to the Administrative Agent on behalf of the Lenders a fee in the amount of one percent (1%) of the then outstanding principal balance of the Loans,
(x) the Borrowers shall, jointly and severally, pay all of the reasonable costs and expenses of the Administrative Agent and Lenders incurred in connection with the proposed transaction, whether or a salenot such transaction actually occurs, assignment including, without limitation, attorneys’ fees, and
(xi) The Loan Documents shall be modified to include such other provisions with respect to such transaction as the Administrative Agent and Lenders shall reasonably require.
(c) The issuance or other transfer ofof publicly traded shares in the REIT, or the grant issuance or transfer of any interests in Sunstone (whether membership interest or operating partnership units) in connection with the acquisition of other hotel properties and assets, so long as there is no change in the Decisionmaking Control over the REIT or Sunstone.
(d) The issuance or transfer of any interests in Sunstone (whether membership interest or operating partnership units), including, without limitation, any issuance or transfer of interests in Sunstone in connection with a merger, acquisition or other business combination other than as described in Section 8.1(2)(b) above; provided, however, if there is a change in the Decisionmaking Control over the REIT or Sunstone as a result of such an issuance or transfer of interests in Sunstone, then each of the following conditions must be satisfied:
(i) immediately after the completion of such transaction, the tangible net worth (exclusive of goodwill) of each of the REIT and Sunstone shall be equal to or greater than the sum of (A) $250,000,000 plus (B) the greater of (i) eighty-five percent (85%) of the sum of the tangible net worths (exclusive of goodwill) of all of the Borrowers on the date of this Agreement and (ii) the sum of the tangible net worths (exclusive of goodwill) of all of the Borrowers immediately prior to the closing of such transaction,
(ii) immediately after the completion of such transaction, each of the REIT and Sunstone shall be of equal or greater creditworthiness as the Borrowers immediately prior to the closing of such transaction,
(iii) each of the REIT and Sunstone shall have a ratio of debt to book assets that does not exceed 60%,
(iv) each of the REIT and Sunstone shall be able to make all of the representations and warranties set forth in Section 6.32 hereof relating to OFAC and other Legal Requirements relating to terrorism and money laundering, and shall otherwise comply with all requirements of the Lenders and the Administrative Agent relating thereto,
(v) each of the REIT (and its Affiliates) and Sunstone (and its Affiliates) are not and have not been involved in any litigation with the Administrative Agent or any Lender and have not defaulted on any obligations owed to the Administrative Agent or any Lender,
(vi) the Person which has Decisionmaking Control over Sunstone shall have no less experience in the ownership and management of full service hotel assets than the Borrowers and their respective principals and shall be otherwise approved by the Administrative Agent,
(vii) the Borrowers shall, jointly and severally, pay all of the reasonable costs and expenses of the Administrative Agent and Lenders incurred in connection with the proposed transaction, whether or not such transaction actually occurs, including, without limitation, attorneys’ fees, and
(viii) The Loan Documents shall be modified to include such other provisions with respect to such transaction as the Administrative Agent and Lenders shall reasonably require.
(e) The transfer of partnership or limited liability company interests in Wxxxxxxxx Real Estate Fund III, L.P., Wxxxxxxxx Real Estate Co-Investment Partnership III, L.P., Wxxxxxxxx Sunstone Investors, L.L.C., Wxxxxxxxx Real Estate Partners, LLC, Wxxxxxxxx Real Estate Partners Management III, LLC, or any Affiliate thereof.
(f) Any Mezzanine Pledge, so long as:
(i) at all times prior to the enforcement (whether by possession, foreclosure, sale, or otherwise) by the holder of such Mezzanine Pledge of its security interest inin the equity interests in Sunstone, Borrower’s rightthe REIT shall have Decisionmaking Control over Sunstone and Sunstone shall have Decisionmaking Control over Sunstone Hotel TRS, title and
(ii) as a condition precedent to the execution and delivery of such Mezzanine Pledge, the holder thereof (and, if different, the Person or Persons which enter into the Mezzanine Obligation with Sunstone, Sunstone Hotel TRS or the REIT) shall enter into an intercreditor agreement with the Administrative Agent which is in form and substance reasonably acceptable to the Administrative Agent.
(3) As used in this Section 8.1, “transfer” shall include the sale, transfer, conveyance, mortgage, pledge, or assignment of the legal or beneficial ownership of (a) any Individual Property, (b) any partnership interest in and to any Leases general partner in any Borrower or any Rents; Borrower Party that is a partnership, (c) if Borrower or any other Restricted Party is a corporationmembership interest in any member, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Borrower Party that is a trust limited liability company, and (d) any voting stock in any general partner in any Borrower or nominee trust, any Borrower Party that is a corporation; “transfer” shall not include (i) the voluntary or involuntary transfer leasing of space within the Properties so long as each Borrower complies with the provisions of the legal Loan Documents relating to such leasing activity and (ii) the Release of any Individual Property in compliance with the terms of Section 2.7 or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsSection 3.3(3) hereof.
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Due on Sale and Encumbrance; Transfers of Interests. (1) Except to as permitted by the extent permitted pursuant to Article 8provisions of this Agreement or the other Loan Documents, neither no Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallwill, without the prior written consent of LenderAdministrative Agent, sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Party, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property permit or any part thereof or interest therein for a price to be paid in installments; suffer (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) any sale, assignment, conveyance, transfer or the creation other disposition of any legal or issuance of new stock such that such corporation’s stock shall be vested equitable interests in a party or parties who are not now stockholders all or any change part of its applicable Individual Property (a “Property Transfer”), (b) permit or suffer (by operation of law or otherwise) any mortgage, lien or other encumbrance of all or any part of the Individual Property other than the Permitted Encumbrances, (c) permit or suffer (by operation of law or otherwise) any sale, assignment, conveyance, transfer or other disposition of any direct or indirect interest in the control of such corporation; any Borrower (an “Equity Transfer”), (d) if permit or suffer (by operation of law or otherwise) any pledge, hypothecation, creation of a security interest in or other encumbrance of any direct or indirect interest in any Borrower or (e) file a declaration of condominium with respect to any Individual Property or (f) grant any easement or other agreement granting rights in or restricting the use or development of any Individual Property (each action described in clauses (a), (b), (c), (d), (e) and (f) of this subsection is a “Prohibited Transfer”).
(2) A Property Transfer of any Individual Property subject to the lien of the Mortgage (but not a mortgage, lien or other encumbrance on the applicable Individual Property other than the Permitted Encumbrances) is permitted provided that each of the following conditions are satisfied:
(a) no Event of Default shall have occurred and be continuing and such Property Transfer shall not result in an Event of Default;
(b) Borrower shall give or cause to be given written notice to Administrative Agent of the proposed Property Transfer not later than thirty (30) days prior thereto, which notice shall set forth the name of the Transferee and set forth the date the Property Transfer is expected to be effective;
(c) the Person (the “Transferee”) to whom the applicable Individual Property is sold or conveyed in the Property Transfer (i) satisfies the requirements of a Single Purpose Entity, (ii) has not, nor any of its constituent equity owners (other than Public Shareholders) that own more than ten (10%) of the outstanding interests in the Transferee have, previously been in default under a loan or other Indebtedness with a Lender hereunder, which default results in a foreclosure, or a deed in lieu of foreclosure or other transfer in lieu of foreclosure, of the collateral securing the defaulted loan or other Indebtedness, (iii) is not, nor any of its constituent equity owners (other than Public Shareholders) are, a Prohibited Person, and (iv) is, and all of its constituent equity owners (other than Public Shareholders) that own more than ten (10%) of the outstanding interests in the Transferee are, in good standing in its state or country of organization;
(d) after giving effect to such Property Transfer, (i) General Growth, GGPLP L.L.C. and/or GGPLP owns 50% or more of the direct or indirect equity interests in the Transferee and (ii) the Transferee is controlled, directly or indirectly, by General Growth, GGPLP and/or GGPLP L.L.C.;
(e) following such Transfer the applicable Individual Property will be self-managed by the Transferee or managed by a Qualifying Manager;
(f) the Transferee shall execute an assumption, effective as of the date of the Property Transfer, of all of the obligations of the applicable Borrower thereafter arising or to be performed under this Agreement, the Mortgage and the other Loan Documents to which the applicable Borrower is a party, subject, however, to the provisions of Section 13.1 of this Agreement and shall deliver or cause to be delivered such legal opinions and title insurance endorsements as may be reasonably requested by Administrative Agent; and
(g) the proposed Property Transfer will not result in a violation of any of the covenants contained herein relating to compliance with ERISA, the Patriot Act and the Executive Order, and the applicable Borrower shall deliver or cause the proposed Transferee to deliver to Administrative Agent such documentation of compliance as Administrative Agent shall reasonably request.
(i) Administrative Agent shall release the applicable Borrower from any liability thereafter arising under this Agreement or any of the other Loan Documents to which the applicable Borrower is a party and (ii) the applicable Borrower shall release Administrative Agent from any claims against Administrative Agent arising in connection with the Loans prior to the date of such Property Transfer, such releases to be self-operative without the need for any additional release in writing.
(3) An Equity Transfer (but not a pledge, hypothecation, creation of a security interest in or other encumbrance) of any direct or indirect interests in any Borrower is permitted provided the following conditions are satisfied:
(a) after giving effect to such Equity Transfer, (i) General Growth, GGPLP L.L.C. and/or GGPLP owns 50% or more of the direct or indirect equity interests in the applicable Borrower and (ii) the applicable Borrower is controlled, directly or indirectly, by General Growth, GGPLP and/or GGPLP L.L.C.;
(b) after giving effect to such Equity Transfer, the applicable Individual Property will be self-managed by the Transferee or managed by a Qualifying Manager, Sponsor or an Affiliate of Sponsor;
(c) immediately prior to such Equity Transfer, no Event of Default has occurred and is continuing;
(d) the proposed Equity Transfer will not result in a violation of any of the covenants contained herein relating to compliance with ERISA, the Patriot Act and the Executive Order, and the applicable Borrower shall deliver or cause the proposed transferee to deliver to Administrative Agent such documentation of compliance as Administrative Agent shall reasonably request;
(e) the applicable Borrower shall give or cause to be given written notice to Administrative Agent of the proposed Equity Transfer not later than fifteen (15) days prior thereto; and
(f) the proposed transferee (i) has not, nor any of its constituent equity owners (other than Public Shareholders) that own more than ten (10%) of the outstanding interests in the proposed transferee have, previously been in default under a loan or other Indebtedness with a Lender hereunder, which default results in a foreclosure, or a deed in lieu of foreclosure or other transfer in lieu of foreclosure, of the collateral securing the defaulted loan or other Indebtedness, (iii) is not, nor any of its constituent equity owners (other than Public Shareholders) are, a Prohibited Person and (iv) is, and all any of its constituent equity owners (other than Public Shareholders) that own more than ten (10%) of the outstanding interests in the Transferee are, in good standing in its state or country of organization.
(4) Nothing contained in this Agreement or in any other Loan Document shall restrict the right of (A) any shareholder in General Growth or in any other Person, the shares of whom are traded on the New York Stock Exchange or any other Restricted Party is nationally or internationally recognized exchange, to sell, assign, convey, transfer, pledge, hypothecate, create a security interest in or otherwise dispose of such shares or cause it shares to be redeemed, or (B) any limited partner of GGPLP to sell, assign, convey, transfer, pledge, hypothecate, create a security interest in or general partnershipotherwise dispose of its limited partnership interest in GGPLP or to cause or permit its limited partnership interest in GGPLP to be redeemed or (iii) the holder of any equity interest (each an “Equity Holder”) in TRS, joint venture NYSCRS, Ivanhoe, GGP/Homart, Inc., GGP/Homart II L.L.C., GGPLP L.L.C. or limited liability companyGGP Ivanhoe, Inc. (other than General Growth, GGPLP and/or GGPLP L.L.C. or any of its or their Affiliates) to transfer such Equity Holder’s interest in TRS, NYSCRS, Ivanhoe, GGP/Homart, Inc., GGP/Homart II L.L.C., GGPLP L.L.C. or GGP Ivanhoe, Inc. or to cause or permit such Equity Holder’s interest in TRS, GGP/Homart, Inc., GGP/Homart II L.L.C., GGPLP L.L.C. or GGP Ivanhoe, Inc. to be redeemed.
(5) Notwithstanding anything to the changecontrary contained in this Section, removalany owner of any direct or indirect ownership interests in any Borrower may sell, resignation assign, convey, transfer, pledge, hypothecate, create a security interest in or addition otherwise dispose of its interest in applicable Borrower to or in favor of an Approved Entity in one or a series of transactions, and the holder of such interest may exercise any remedies or rights pursuant to such pledge or security instrument without Administrative Agent’s consent, provided that:
(a) after giving effect to such sale, assignment, conveyance, transfer, pledge, hypothecation, creation of a general partnersecurity interest in or other disposition of its interest in the applicable Borrower or other disposition, managing partnerand after the exercise of any remedies or rights pursuant to such pledge or security instrument, limited partner50% or more of the direct or indirect equity interests in the applicable Borrower are owned directly or indirectly by General Growth, joint venturerGGPLP and/or GGPLP L.L.C. and the applicable Borrower is controlled, member directly or non-member managerindirectly, by General Growth, GGPLP and/or GGPLP L.L.C.; and
(b) at all times the applicable Individual Property is managed by a Qualifying Manager.
(6) Notwithstanding anything to the contrary contained in this Section, General Growth, GGPLP, GGPLP LLC and/or any Affiliate Pledgor may, as security for operating debt incurred or to be incurred by such Person, in one or a series of transactions, pledge, hypothecate, grant of a security interest or other encumbrance to a Qualified Pledgee in such Person’s respective assets (including the direct or indirect equity interests of such Person in the applicable Borrower) and the holder of such pledge or security interest may exercise any remedies or rights pursuant to such pledge or security instrument without Administrative Agent’s consent, provided that at all times the Property shall be managed by a Qualifying Manager.
(7) Notwithstanding anything herein to the contrary, any Borrower may, without the consent of Administrative Agent (A) record lot line adjustments, (B) subdivide the applicable Individual Property, or (C) enter into any reciprocal easement agreements, utility easements, access easements or other similar agreements relating to the use or development of the applicable Individual Property or reasonably required in connection with a partial release pursuant to Sections 2.5(2), (4) or (5) hereof, provided that (i) no such encumbrance set forth in the foregoing clauses shall materially impair the utility and operation of the applicable Individual Property or otherwise have a Material Adverse Effect as to any Individual Property (collectively, “Property Documents”) and (ii) the applicable Borrower shall deliver an executed copy of the applicable instrument promptly following execution thereof. In connection with any action permitted pursuant to this Section 9.1(7), if any Borrower requests Administrative Agent’s consent thereto, Administrative Agent shall not unreasonably withhold Administrative Agent’s consent and upon such consent, Administrative Agent shall execute and deliver any instrument reasonably necessary or appropriate in order to subordinate the Lien of the Mortgage and the other Loan Documents to such easements, restrictions, covenants, reciprocal easement agreements, reservations and rights of way or other similar grants upon receipt by Administrative Agent of:
(a) a copy of the applicable instrument, which instrument shall be reasonably acceptable to Administrative Agent and shall automatically inure to the benefit of (and burden) successors and assigns of the applicable Borrower; and
(b) an Officer’s Certificate stating that such lot line adjustments, subdivisions, easements, restrictions, covenants, reservations, rights of way or other similar grants do not materially impair the utility and operation of the applicable Individual Property or have a Material Adverse Effect on such applicable Individual Property’s value.
(8) Administrative Agent shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer which occurs in violation of this Agreement or without Administrative Agent’s consent. This provision shall apply to every Prohibited Transfer which occurs in violation of this Agreement regardless of whether voluntary or involuntary transfer not, or whether or not Administrative Agent has consented to any previous Prohibited Transfer.
(9) Administrative Agent’s consent to one Prohibited Transfer shall not be deemed to be a waiver of Administrative Agent’s right to require such consent to any future occurrence of same. Any Prohibited Transfer made in contravention of this paragraph shall be null and void and of no force and effect.
(10) Borrower agrees to bear and shall pay or reimburse Administrative Agent on demand for all actual and reasonable out-of-pocket expenses (including, without limitation, reasonable attorneys’ fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Administrative Agent in connection with the review, approval and documentation of any transfer.
(11) Notwithstanding anything to the contrary contained herein, Borrower may request that Administrative Agent confirm whether or not the constituent equity owners of the partnership interest Transferee or proposed transferee, as the case may be, comply with the conditions contained in Sections 9.1(2)(c) or 9.1(3)(f), respectively, which confirmation to any such request shall be made within five (5) Business Days after request for confirmation has been made by Borrower, accompanied by the identity of any general partnersuch Person, managing partner or limited partner, provided that Borrower submits such request for Administrative Agent’s confirmation in an envelope labeled “Priority” and delivered to Administrative Agent by overnight delivery and otherwise in accordance with the creation or issuance provisions of new partnership interests, Section 12.1 and which request shall state at the voluntary or involuntary transfer top of the interest of first page in bold lettering in 14 pt. font “ADMINISTRATIVE AGENT’S RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT AMONG THE UNDERSIGNED, ADMINISTRATIVE AGENT AND THE LENDERS FROM TIME TO TIME A PARTY THERETO.” In the event that Administrative Agent fails to confirm whether the such Person comply with the conditions contained in Sections 9.1(2)(c) or 9.1(3)(f), as the case may be, is adverse to any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal Lenders (such confirmation shall state the reasons why such Person does not comply with the conditions contained in Sections 9.1(2)(c) or beneficial interest in 9.1(3)(f) hereof, as the case may be) for more than five (5) Business Days after receipt thereof, such trust or nominee trust or Person shall be deemed not adverse to any of the creation or issuance of new legal or beneficial interestsLenders.
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except (1) Without the prior written consent of the Administrative Agent and the Lenders (to the extent permitted pursuant to Article 8, required under Section 12.2):
(a) neither Borrower nor any other Restricted Party, nor any direct or indirect legal Person having an ownership or beneficial owner of interest in Borrower shall (i) directly or Master Tenant shall, without the prior written consent of Lender, indirectly sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignor assign any interest in the Project or any part thereof (including any partnership, membership or any other ownership interest in Borrower); (ii) further encumber, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to xxxxx x Xxxx or grant xxxxx any other interest in the Property Project or any part thereof or interest therein, (including any legalpartnership, beneficial, economic membership or voting other ownership interest in Borrower or any other Restricted PartyBorrower), whether directly or indirectly, voluntarily or involuntarily, by operation ; or (iii) enter into any easement or other agreement granting rights in or restricting the use or development of law or otherwise the Project;
(each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 b) no new member shall be deemed admitted to include or created in Borrower (nor shall any existing partner or member withdraw from Borrower), and no change in Borrower’s organizational documents relating to control over Borrower and/or the Project shall be effected; and
(c) there shall be no Change of Control of Borrower’s Managing Member or Borrower’s Managing Member’s General Partner.
(2) Notwithstanding the provisions of Section 9.1(1), (a) prior to the Completion Date, Sponsor shall be permitted to transfer a portion of its direct or indirect ownership interests in Borrower to an installment sales agreement wherein Approved Transferee, so long as (i) at the time of such transfer there exist no monetary defaults or Events of Default under the Loan Documents, (ii) at the time of such transfer no Low DSCR Trigger Period exists, (iii) at all times following such transfer, Sponsor continues to own not less than fifty-one percent (51%) of the direct or indirect ownership interests in Borrower, and (iv) at all times following such transfer, Sponsor continues to Control Borrower agrees to sell the Property and there is no Change of Control of Borrower’s Managing Member or any part thereof or interest therein for a price to be paid in installmentsBorrower’s Managing Member’s General Partner; and (b) after the Completion Date, Sponsor shall be permitted to transfer a portion of its direct or indirect ownership interests in Borrower to an agreement by Borrower for Approved Transferee, so long as (i) at the leasing time of such transfer there exist no monetary defaults or Events of Default under the Loan Documents, (ii) at the time of such transfer no Low DSCR Trigger Period exists, (iii) at all or a substantial part times following such transfer, Sponsor owns at least twenty percent (20%) of the Property for any purpose other than the actual occupancy by a space tenant thereunder direct or a saleindirect ownership interests in Borrower, assignment or other transfer of(iv) at all times following such transfer, or the grant Sponsor continues to Control Borrower and there is no Change of a security interest in, Control of Borrower’s rightManaging Member or Borrower’s Managing Member’s General Partner, title and interest (v) at all times following such transfer Sponsor or an Affiliate is Manager.
(3) Notwithstanding the foregoing, Sponsor may pledge its direct or indirect ownership interests in Borrower as security for Sponsor’s obligations under its primary credit facility; provided that (i) such pledge shall not be subject to foreclosure, nor shall there be any conveyance in lieu thereof, nor shall there be any other action in respect of such pledged interests inconsistent with the consent and acknowledgement referred to any Leases or any Rentsin clause (iii) below, without the Administrative Agent’s prior written consent; (cii) if Borrower or any other Restricted Party is a corporationsuch pledge, the voluntary or involuntary saleby its express terms, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested subject to the limitations on foreclosure and conveyance in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member managerlieu thereof set forth above; and (eiii) the pledgee shall deliver such acknowledgments of and consents to the foregoing as the Administrative Agent may request. Without limiting the foregoing, if Borrower or any other Restricted Party is a trust or nominee trustEurohypo exercises the Mezzanine Option, the voluntary or involuntary transfer pledgee shall release its pledge on any of the legal or beneficial ownership interest that form the collateral for the Mezzanine Loan (without limiting the rights of Sponsor, in accordance with this Section 9.1(3), to pledge to such trust or nominee trust or pledgee other indirect ownership interests in Borrower that do not form the creation or issuance of new legal or beneficial interestscollateral for the Mezzanine Loan).
Appears in 1 contract
Samples: Construction Loan Agreement
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without (a) Without the prior written consent of LenderLender or unless otherwise expressly permitted pursuant to this Agreement, neither Borrower nor Operating Lessee nor any other Person having a direct or indirect ownership or beneficial interest in Borrower and/or Operating Lessee shall sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignLien, alienateassign or transfer any interest, lease (except to Tenants under Leases that are not direct or indirect, in violation of Section 4.1.10 hereof)a Restricted Party, grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partythereof, whether directly or indirectly, voluntarily or involuntarily, by operation in violation of law or otherwise the covenants and conditions set forth in the Security Instrument and this Agreement (eachcollectively, a “Prohibited Transfer”). A .
(b) Unless otherwise expressly permitted pursuant to this Agreement, a Prohibited Transfer within the meaning of this Section 4.2.1 shall include, but not be deemed to include limited to, (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the and/or Operating Lessee leasing of all or a substantial part of the Property for any purpose (other than the Operating Lease) for other than actual occupancy by a space tenant Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s and/or Operating Lessee’s right, title and interest in and to any (A) Leases or any RentsRents or (B) REAs; (ciii) if Borrower or any other a Restricted Party is a corporation, the voluntary any merger, consolidation or involuntary sale, conveyance Sale or transfer Pledge of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in one or a party or parties who are not now stockholders or any change in the control series of such corporationtransactions; (div) if Borrower or any other a Restricted Party is a limited or general partnershippartnership or joint venture, joint venture any merger or limited liability company, consolidation or the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member partner or non-member manager, the voluntary Sale or involuntary transfer Pledge of the partnership interest of any general partner, managing or limited partner or limited partner, the creation any profits or issuance of new proceeds relating to such partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, interests or the creation or issuance of new membership interests limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or interest in any consolidation or the change, removal, resignation or addition of a managing member or non-member managermanager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; and (evi) if Borrower or any other a Restricted Party is a trust or nominee trust, any merger, consolidation or the voluntary Sale or involuntary transfer Pledge of the legal or beneficial interest in such trust or nominee trust a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) any action for partition of the Property (or any portion thereof or interest therein) or any similar action instituted or prosecuted by Borrower or by any other person or entity, pursuant to any contractual agreement or other instrument or under applicable law (including, without limitation, common law); and/or (viii) the entering into of a PACE Transaction; provided, however, Prohibited Transfers shall not include (A) Permitted Encumbrances, (B) Permitted Equipment Leases, (C) transfers of worn out or obsolete FF&E that are replaced with property of equivalent value and functionality in the ordinary course of the operation of the Property, (D) any Property Sale effectuated in accordance with the terms of Section 8.1 hereof, or (E) any Permitted Equity Transfer effectuated in accordance with the terms of Section 8.2 hereof.
(c) Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (i) a modification of the terms hereof and an assumption of this Agreement and the other Loan Documents as so modified by the proposed Prohibited Transfer, (ii) payment of a transfer fee of 1% of outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (iii) if required by Lender, receipt of a Rating Agency Confirmation with respect to the Prohibited Transfer, (iv) the proposed transferee’s continued compliance with the covenants set forth in this Agreement, including, without limitation, the covenants in Sections 3.1.24 and 4.2.11 hereof, (v) if such transfer results in any Person owning in excess of forty-nine percent (49%) of the direct or indirect interests in Borrower, Operating Lessee or any SPC Party that did not own the same immediately prior to such Prohibited Transfer, receipt of a New Non-Consolidation Opinion with respect to the Prohibited Transfer, (vi) the ability of the transferee to satisfy Lender’s then current underwriting standards, (vii) an opinion satisfactory to Lender that the Prohibited Transaction will not cause an Adverse REMIC Event and/or (viii) such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender. All reasonable expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer without Lender’s consent. This provision shall apply to every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer.
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent as otherwise expressly permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without the prior written consent of Lender, neither Borrower nor Sole Member nor any other Person having a direct or indirect ownership or beneficial interest in Borrower or Sole Member shall (a) sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to assign or grant any other interest in transfer the Property or any part thereof thereof, or interest thereinany interest, including any legaldirect or indirect, beneficial, economic or voting interest in Borrower or any other Restricted PartySole Member, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise otherwise, or (each, b) permit or suffer any change in control of any Borrower (each of (a) and (b) a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (ai) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (ciii) if Borrower, Guarantor, or any general partner, managing member or controlling shareholder of Borrower or any other Restricted Party Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that in one or a series of transactions by which an aggregate of more than 10% of such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (div) if Borrower Borrower, Sole Member any Guarantor or any other Restricted Party general partner, managing member or controlling shareholder of Borrower, Sole Member or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, venturer or member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, partner or the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member venturer or non-member manager, or the creation or issuance of new membership interests or interest in any non-member managermember; and (ev) if any pledge, hypothecation, assignment, transfer or other encumbrance of any direct or indirect ownership interest in Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsSole Member.
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust V, Inc.)
Due on Sale and Encumbrance; Transfers of Interests. Except Without the prior written consent of Lender, which may be withheld in its sole discretion, the Loan shall become due and payable upon the occurrence of any Transfer (as defined below), except for Permitted Encumbrances and Permitted Transfers. Without limiting the foregoing, other than with respect to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shalla Permitted Transfer, without the prior written consent of Lender:
(a) neither Borrower nor any other Person having a legal or beneficial ownership or economic interest in Borrower shall: (i) Transfer, selldirectly or indirectly, transferany interest in the Property or any part thereof, conveyany Collateral or any other asset of Borrower, or mortgage, grantpledge or assign any other asset of Borrower, bargain, except for Permitted Encumbrances or Distributions permitted under this Agreement; (ii) further encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to xxxxx x xxxx or grant xxxxx any other interest in the Property or any part thereof thereof, whether voluntarily or interest thereininvoluntarily, including except for Permitted Encumbrances; (iii) enter into any legaleasement or other agreement granting rights in, beneficialor restricting the use or development of, the Property, except for Permitted Encumbrances; or (iv) permit any partition of the Property;
(b) except for a Permitted Transfer, neither Borrower nor any other Person having a beneficial ownership or economic or voting interest in Borrower or any other Restricted Partyshall Transfer, whether directly or indirectly, any ownership or economic interest in Borrower, or encumber, alienate, xxxxx x xxxx or grant any other interest in any ownership or economic interest in Borrower, whether voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; and
(c) if Borrower or any other Restricted Party is except for a corporationPermitted Transfer, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of no new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, manager or member having the ability to control the affairs of Borrower shall be admitted to or non-member manager, the voluntary or involuntary transfer of the partnership interest of created in Borrower (nor shall any existing general partner, managing partner or controlling limited partner, the creation or issuance of new partnership interestsmanager, the voluntary or involuntary transfer of the interest of any joint venturer, managing member or non-controlling member managerwithdraw from Borrower), and no change in Borrower’s organizational documents relating to control over Borrower and/or the Property shall be effected that would have the effect of changing the control, direct or the creation or issuance indirect, of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsBorrower.
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. (a) Except to the extent for Permitted Transfers or as otherwise permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallhereby, without the prior written consent of LenderAgent, no Borrower nor any other Person having a direct or indirect ownership or beneficial interest in any Borrower shall do any of the following:
(i) create, or permit the creation of, any new direct or indirect ownership interest in any Borrower, or
(ii) sell, transfer, conveyor permit the sale or transfer of (A) all or any part of the Projects, mortgageor any interest therein (other than Leases permitted hereunder), grantor (B) any direct or indirect ownership interest in any Borrower (including any interest in the profits, bargainlosses or cash distributions in any way relating to the Projects, any Borrower or Guarantor), or
(iii) encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to xxxxx x Xxxx or grant any other interest in the Property any Project or any part thereof (other than Leases, easements or other restrictions permitted hereunder) or take or fail to take any other action which would result in a Lien against the Projects or the interest therein, including of any legal, beneficial, economic Borrower in any Project or voting any ownership interest in Borrower or any other Restricted PartyBorrower, whether directly or indirectly, voluntarily or involuntarilyinvoluntarily except Liens in favor of Agent for the benefit of Lender and Agent, by operation or
(iv) enter into any easement or other agreement granting rights in or restricting the use or development of law any Project (provided that Agent’s consent thereto shall not be unreasonably withheld or otherwise delayed), or
(each, a “Transfer”). A Transfer within the meaning of i) As used in this Section 4.2.1 8.1, “Change in Control” shall be deemed to include mean a change (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary saleinvoluntary, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the Person or Persons which directly or indirectly control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer Guarantor as of the partnership interest of any general partnerRestatement Date, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest as described in any non-member manager; and subparagraphs (eA) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interests.through (D) below:
Appears in 1 contract
Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of LenderAdministrative Agent and the Lenders (to the extent required under Section 12.2),
(1) Borrower shall not allow any Change of Control to occur, sellor permit any transfer to occur (whether of equity interests or through any pledge or encumbrance of equity interests, transfer, convey, mortgage, grant, bargain, encumber, pledge, assign, alienate, lease (except to Tenants under Leases that are not in violation or of Section 4.1.10 hereof), grant any option with respect to or grant any other interest in the Property or any part thereof or interest therein, including any legal, beneficial, economic or voting interest in Borrower or any other Restricted Partybenefits therefrom, whether directly or indirectlyvoluntary, voluntarily or involuntarilyinvoluntary, by operation of law or otherwise (each, a “Transfer”). A Transfer within the meaning of this Section 4.2.1 shall be deemed to include (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for the leasing of all or a substantial part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock if any such that such corporation’s stock shall be vested transfer would result in a party or parties who are not now stockholders or any change in the control Change of such corporation; Control;
(d2) if neither Borrower or nor any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the legal Person having an ownership or beneficial interest in Borrower shall (a) sell, transfer, convey, alienate, mortgage, pledge, encumber, xxxxx x Xxxx on, assign or grant any interest in, the Project or any part thereof, whether voluntarily or involuntarily (b) sell, transfer, convey, alienate, mortgage, pledge, encumber, xxxxx x Xxxx on, assign or grant any interest in, any direct or indirect ownership interest in Borrower, whether voluntarily or involuntarily, if the same (I) would result in a Change of Control, or (II) in the case of any mortgage, pledge, encumbrance, Lien or collateral assignment of any kind, would result in a Change of Control if the applicable mortgagee, pledgee, encumbrance or Lien holder or assignee foreclosed or otherwise realized upon such trust mortgage, pledge, encumbrance, Lien or nominee trust collateral assignment or otherwise exercised any of its rights with respect thereto; or (c) enter into any easement or other agreement (other than leases entered into in accordance with the creation terms of this Agreement) granting rights in or issuance restricting the use or development of the Project;
(3) no new legal general partner, member, or beneficial interestslimited partner having the ability to control the affairs of Borrower shall be admitted to or created in Borrower (nor shall any existing general partner or member or controlling limited partner withdraw from Borrower), and no change in Borrower's organizational documents relating to control over Borrower and/or the Project shall be effected.
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Due on Sale and Encumbrance; Transfers of Interests. Except to the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shall, without Without the prior written consent of Mezzanine Lender, which consent may be given or withheld in Mezzanine Lender's sole and absolute discretion, but, in each instance, subject to the provisions of Article 8, neither any Borrower, any Owner nor any other Person having a direct or indirect ownership or beneficial interest in any Borrower or any Owner shall (and such Borrower shall not permit such Owner to) sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignassign or transfer (i) any 363 Individual Property or any part thereof, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to or grant any other interest in ii) the Property Collateral or any part thereof or interest therein(iii) any interest, including direct or indirect, in any legalBorrower, beneficialany Owner, economic or voting interest in Borrower or any other Restricted Party, SPC Party whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise involuntarily (each, a “Transfer”"TRANSFER"). A Transfer within the meaning of this Section SECTION 4.2.1 shall be deemed to include (ai) an installment sales agreement wherein Borrower any Owner agrees to sell the any Individual Property or any part thereof or interest therein for a price to be paid in installments; (bii) an agreement by Borrower for the any Owner leasing of all or a substantial part of the any Individual Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s any Owner's right, title and interest in and to any Leases or any Rents; (ciii) if Borrower any Borrower, any Owner, either Guarantor or any other Restricted Party general partner, managing member or controlling shareholder of such Borrower, such Owner or such Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s 's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that in one or a series of transactions by which an aggregate of more than 10% of such corporation’s 's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation, except to the extent such Transfer is a Permitted Transfer under SECTION 8.1; (div) if Borrower any Borrower, any Owner, either Guarantor or any other Restricted Party general partner, managing member or controlling shareholder of such Borrower, such Owner, or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, venturer or member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, partner or the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturerventurer or member, member except to the extent such Transfer is a Permitted Transfer under SECTION 8.1; and (v) any pledge, hypothecation, assignment, transfer or non-member manager, other encumbrance of any direct or the creation or issuance of new membership interests or indirect ownership interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust Owner or nominee trust, the voluntary or involuntary transfer of the legal or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsany SPC Party.
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Samples: Mezzanine Loan Agreement (Horizon Group Properties Inc)
Due on Sale and Encumbrance; Transfers of Interests. Except to (i) Borrower acknowledges and agrees that Lender has relied upon the extent permitted pursuant to Article 8principals of Borrower and their experience in owning and operating the Property. Accordingly, neither Borrower nor any other Restricted Party, nor in the event that (A) any direct interest in Borrower, or (B) except as set forth in Section 8(v)(ii) below, any indirect legal interest in Borrower, shall be sold, conveyed, disposed of, alienated, hypothecated, assigned, pledged, mortgaged, further encumbered or beneficial owner otherwise transferred, in any manner or way, whether voluntarily or involuntarily (each of Borrower or Master Tenant shallthe foregoing, a “Transfer”) without the prior written consent of Lender, sellthen the same shall, transferat the option of Lender, conveyconstitute an Event of Default hereunder and under the other Loan Documents and Lender shall have the right, mortgageat its option, grantto declare any or all of the Debt, bargainirrespective of the Maturity Date, encumberimmediately due and payable and to otherwise exercise any of its other rights and remedies contained in this Loan Agreement and/or any of the other Loan Documents.
(ii) Notwithstanding anything in Section 8(v)(i) above to the contrary, pledge, assign, alienate, lease provided
(except A) Borrower provides Lender with at least ten (10) days written notice (the “Permitted Transfer Notice”) prior to Tenants under Leases that are not in violation the date of Section 4.1.10 hereofany such Permitted Transfer (as hereinafter defined), grant (B) on the date of delivery to Lender of the Permitted Transfer Notice and on the date of such Permitted Transfer, no Event of Default or event which, with the giving of notice or passage of time, would result in an Event of Default, then exists, (C) any option with respect to or grant any other interest such Permitted Transfer would not result in the Property release of any Guarantor or cause any part thereof or interest thereinGuarantor to no longer derive a direct material benefit from the making of the Loan (as determined by Lender in its sole and absolute discretion), including (D) any legaltransferee pays all costs and expenses incurred by Lender, beneficialincluding, economic or voting interest but not limited to, reasonable attorneys fees, in Borrower or connection with such Permitted Transfer, and (E) any such transferee and transferor provide Lender with such other Restricted Partyinformation and documents as requested by Lender in its sole and absolute discretion, whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise the following transfers (each, each a “Permitted Transfer”). A Transfer within the meaning of this Section 4.2.1 ) shall be deemed to include permitted by Lender:
(a1) an installment sales agreement wherein transfers or pledges of direct or indirect Equity Interests (as hereinafter defined) in the sole member of Borrower agrees to sell which in the Property or any part thereof or interest therein for a price to be paid in installments; (b) an agreement by Borrower for aggregate during the leasing of all or a substantial part term of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; Loan (ci) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock do not exceed forty-nine percent (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise49%) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner total direct or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Party is a trust or nominee trust, the voluntary or involuntary transfer of the indirect legal or beneficial interest Equity Interests in such trust the sole member of Borrower and (ii) do not result in a change in Control (as hereinafter defined) of the sole member of Borrower; and
(2) transfers or nominee trust pledges of direct or indirect Equity Interests in the creation sole member of Borrower among the holders thereof or issuance their Affiliates (or parties under common Control with them) as of new legal the date hereof provided that, after the consummation thereof, sole member of Borrower is Controlled by: (i) entities Controlled by, affiliated with, or beneficial interestsunder common Control with Independence Realty Trust, Inc., (ii) Guarantor or entities Controlled by, affiliated with, or under common Control with Guarantor; and/or (iii) any combination of the foregoing.
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Samples: Loan and Security Agreement
Due on Sale and Encumbrance; Transfers of Interests. Except (1) Without the prior written consent of the Administrative Agent and the Lenders (to the extent permitted pursuant to Article 8, required under Section 11.2),
(a) neither Borrower nor any other Restricted Party, nor any Person having an indirect or direct or indirect legal ownership or beneficial owner of interest in Borrower shall (a) directly or Master Tenant shall, without the prior written consent of Lender, indirectly sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignor assign any interest in the Project or any part thereof (including any partnership, membership or any other ownership interest in Borrower); (b) further encumber, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to xxxxx x Xxxx or grant xxxxx any other interest in the Property Project or any part thereof or interest therein, (including any legalpartnership, beneficialmembership or other ownership interest in Borrower), economic whether voluntarily or voting involuntarily; or (c) enter into any easement or other agreement granting rights in or restricting the use or development of the Project;
(b) no new general partner, member, or limited partner having the ability to control the affairs of Borrower shall be admitted to or created in Borrower (nor shall any existing general partner or member or controlling limited partner withdraw from Borrower), and no change in Borrower's organizational documents relating to control over Borrower and/or the Project shall be effected;
(c) no transfer shall be permitted which would cause the REIT to own less than ninety-five percent (95%) of the beneficial interest in Borrower and the Project and less than one hundred percent (100%) of the voting stock in the corporate general partner of Borrower; and
(d) no transfer shall be permitted which would cause Apollo Real Estate Advisors, L.P. (or (i) any investment fund managed by or other Restricted Partyentity controlled by Apollo Real Estate Advisors, whether L.P. or (ii) its principals on the date hereof) to directly or indirectlyindirectly own (on a fully diluted and unencumbered basis) less than thirty percent (30%) of the beneficial and economic interests in Borrower and the Project.
(2) Notwithstanding anything to the contrary contained herein (including Section 8.8) or the other Loan Documents, voluntarily or involuntarily, by operation of law or otherwise (each, a “Transfer”). A Transfer within but subject to the meaning provisions of this Section 4.2.1 subsection (2), any Single Purpose Entity (other than Borrower) which directly or indirectly owns equity interests in Borrower and which is acceptable to the Administrative Agent (the "Mezzanine Borrower"), such approval not to be unreasonably withheld, shall be deemed permitted to include obtain additional financing (a "Mezzanine Loan") from a Mezzanine Lender provided that each of the following conditions is satisfied:
(a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof or interest therein for a price to be paid in installments; principal amount of the Mezzanine Loan does not exceed $25,000,000;
(b) the Mezzanine Loan (a) is secured primarily by a lien on the REIT's (i) 100% ownership interest in the capital stock of 1290 GP Corp., the current general partner of Borrower, (ii) 94.05% limited partnership interest in the Borrower and (iii) 100% ownership interest in the capital stock of 237/1290 GP Corp., and not by the Project, and (b) does not constitute an agreement by Borrower for obligation of, or any lien upon any assets of, Borrower;
(c) the leasing Loan-to-Value Ratio immediately after the making of all or a substantial the Mezzanine Loan, assuming that the Mezzanine Loan is part of the Property for any purpose other than the actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title Loan and interest in and to any Leases or any Rents; (c) if Borrower or any other Restricted Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock utilizing an Appraisal dated (or updated) to a date not more than ninety (90) days prior to the stock making of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are Mezzanine Loan, does not now stockholders or any change in the control of such corporation; exceed 75%;
(d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, Adjusted Debt Service Coverage Ratio after the voluntary or involuntary transfer making of the partnership interest Mezzanine Loan is at least (i) 1.2 to 1, assuming that the debt service payable on the Mezzanine Loan is not part of any general partnerDebt Service, managing partner or limited partnerand (ii) 1.1 to 1, assuming that the creation or issuance of new partnership interests, debt service payable on the voluntary or involuntary transfer Mezzanine Loan (at the contract rate specified in the Mezzanine Loan documents) is part of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and Debt Service;
(e) if Borrower or any other Restricted Party is the Mezzanine Loan shall have a trust or nominee trust, scheduled maturity date no earlier than the voluntary or involuntary transfer Maturity Date;
(f) the Mezzanine Lender enters into an Intercreditor Agreement;
(g) Administrative Agent shall have received an opinion of counsel to the Mezzanine Lender covering certain organizational matters and the enforceability of the legal or beneficial interest in Intercreditor Agreement against the Mezzanine Lender, it being understood that the Mezzanine Loan documents may provide that such trust or nominee trust or opinion shall be at the creation or issuance sole cost and expense of new legal or beneficial interests.Mezzanine Borrower;
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Due on Sale and Encumbrance; Transfers of Interests. Except to (1) Other than those created by the extent permitted pursuant to Article 8, neither Borrower nor any other Restricted Party, nor any direct or indirect legal or beneficial owner of Borrower or Master Tenant shallLoan Documents, without the prior written consent of Lenderthe Administrative Agent and the Lenders (to the extent required under Section 11.2), and except as expressly permitted by Section 8.1(2):
(a) neither (i) any Borrower, (ii) any Borrower Party, (iii) any other Person having a direct or indirect ownership or beneficial interest in any Borrower or any Borrower Party, nor (iv) any Person that is a manager of any Borrower or any Borrower Party shall (A) directly or indirectly sell, transfer, convey, mortgage, grant, bargain, encumber, pledge, assignor assign any interest in any Individual Property or any part thereof (including any partnership, limited liability company or any other, direct or indirect, ownership or management interest in any Borrower or any Borrower Party); (B) further encumber, alienate, lease (except to Tenants under Leases that are not in violation of Section 4.1.10 hereof), grant any option with respect to a monetary Lien or grant any other interest in the any Individual Property or any part thereof or interest therein, (including any legalpartnership, beneficiallimited liability company or management interest or other, economic direct or voting indirect, ownership interest in any Borrower or any Borrower Party), whether voluntarily or involuntarily; or (C) enter into any easement or other Restricted agreement granting rights in or restricting the use or development of any Individual Property which materially and adversely affects the value of an Individual Property as determined by the Administrative Agent;
(b) no new general partner, manager, member or limited partner having the ability to Control the affairs of any Borrower or any Borrower Party shall be admitted to or created in any Borrower, any Borrower Party or any other Person having a direct or indirect interest (including a management or ownership interest) in any Borrower or any Borrower Party (nor shall any existing general partner, manager, member or Controlling limited partner withdraw from any Borrower, any Borrower Party or any other Person having a direct or indirect interest (including a management or ownership interest) in any Borrower or any Borrower Party), and no change in any Borrower’s or any Borrower Party’s organizational documents relating to Control over any Borrower or any Borrower Party and/or any Individual Property shall be effected; and
(c) no transfer shall be permitted which would cause Sunstone and Xxxxxxxxx Partners not to maintain one hundred percent (100%) direct or indirect Control of any Borrower or any Borrower Party and any manager of any such entity during the entire term of the Loans or cause any Borrower not to be Controlled and majority-owned, whether directly or indirectly, voluntarily or involuntarily, at all times by operation of law or otherwise Sunstone and Xxxxxxxxx Partners.
(each, a “Transfer”). A Transfer within 2) Notwithstanding anything to the meaning of contrary contained in this Section 4.2.1 8.1, the following transfers and other transactions shall be permitted and not be deemed to include a violation or breach of the provisions of Section 8.1(1):
(a) an installment sales agreement wherein Borrower agrees to sell Releases completed in accordance with the Property or any part thereof or interest therein for a price to be paid in installments; requirements of Section 2.7.
(b) an agreement The transfer by Borrower for the leasing Xxxxxxxxx Partners of all or a substantial part up to forty-nine and nine-tenths percent (49.9%) of the Property for any purpose other than direct or indirect legal or beneficial ownership of Sunstone, so long as Xxxxxxxxx Partners at all times continues to own at least fifty and one-tenth percent (50.1%) of the actual occupancy by a space tenant thereunder direct or a sale, assignment indirect legal or other transfer of, or the grant of a security interest in, Borrower’s right, title and beneficial interest in Sunstone and to any Leases or any Rents; Control Sunstone.
(c) A public offering of equity interests in Sunstone or any parent company which directly or indirectly owns Sunstone, so long as immediately after the completion of such public offering Xxxxxxxxx Partners continues to Control Sunstone, provided, however, that if the Delevering Prepayment has been made, Xxxxxxxxx Partners need not continue to Control Sunstone immediately after the completion of such public offering.
(d) A public offering of equity interests in any subsidiary owned directly by Sunstone which is not a Borrower Party and which does not own, directly or indirectly, any legal or beneficial interests in any Borrower, Manager, Operator or Individual Property.
(e) A merger of either Sunstone or a subsidiary of Sunstone with and into a public company or privately held company, or any similar transaction involving Sunstone or a subsidiary of Sunstone, so long as immediately after the completion of such merger or similar transaction (i) the tangible net worth (exclusive of goodwill) of the surviving entity shall be equal to or greater than $250,000,000 and (ii) the surviving entity shall have a ratio of debt to book assets that does not exceed 65%.
(3) As used in this Section 8.1, “transfer” shall include the sale, transfer, conveyance, mortgage, pledge, or assignment of the legal or beneficial ownership of (a) any Individual Property, (b) any partnership interest in any general partner in any Borrower or any other Restricted Borrower Party that is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock such that such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (d) if Borrower or any other Restricted Party is a limited or general partnership, joint venture or limited liability company(c) any membership interest in any member, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer, member or non-member manager, the voluntary or involuntary transfer of the partnership interest of any general partner, managing partner or limited partner, the creation or issuance of new partnership interests, the voluntary or involuntary transfer of the interest of any joint venturer, member or non-member manager, or the creation or issuance of new membership interests or interest in any non-member manager; and (e) if Borrower or any other Restricted Borrower Party that is a trust limited liability company, and (d) any voting stock in any general partner in any Borrower or nominee trust, any Borrower Party that is a corporation; “transfer” shall not include (i) the voluntary or involuntary transfer leasing of space within the Properties so long as each Borrower complies with the provisions of the legal Loan Documents relating to such leasing activity and (ii) the Release of any Individual Property in compliance with the terms of Section 2.7 or beneficial interest in such trust or nominee trust or the creation or issuance of new legal or beneficial interestsSection 3.3(3) hereof.
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