Due on Sale or Encumbrance. Neither Borrower, nor its sole member shall, without the prior written consent of Lender: (i) create, effect, consent to, suffer to exist, assume, incur, permit (voluntarily or involuntarily, by operation of law or otherwise) any direct or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "Transfer") of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title to the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower or any indemnitor or guarantor under this Security Deed or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower (including, without limitation its partners, members, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower or any of the direct or indirect owners of Borrower or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by Lender, Borrower shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation of the Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender shall have the right, at its option, to declare the indebtedness secured by this Security Deed immediately due and payable, irrespective of the maturity date specified in the Note.
Appears in 2 contracts
Samples: Deed to Secure Debt and Security Agreement (Inland Western Retail Real Estate Trust Inc), Deed to Secure Debt and Security Agreement (Inland Western Retail Real Estate Trust Inc)
Due on Sale or Encumbrance. Neither Borrower, nor its sole member shallA. In the event that Trustee or Beneficiary, without the prior written consent of Lender (which consent may be withheld for any reason or for no reason or given conditionally, in Lender: (i) create's discretion), effectshall sell, consent toconvey, suffer to existassign, assume, incur, permit (voluntarily transfer or involuntarily, by operation shall otherwise dispose of law or otherwise) any direct or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "Transfer") of the Property or an interest therein; (ii) be divested of its title to, or shall mortgage, convey security title to, or otherwise encumber or cause to be encumbered (collectively, "Transfer"), the Property Real Estate or any part thereof or any interest therein; therein in any manner or way (iiiwhether direct or indirect, voluntary or involuntary), or in the event of:
(a) enter into a contract to sell any merger, consolidation, or grant dissolution involving, or the Transfer of all or substantially all of the assets of, Beneficiary or Urban LP, any option to purchase that results in a transfer general partner of possession Beneficiary or equitable title to the Property Urban LP, or USC-OO or any portion thereof prior to other direct or indirect general partner of Beneficiary, except as otherwise expressly provided in this Section;
(b) the payment Transfer (at one time or over any period of time) of 10% or more of:
(i) the voting stock of
(A) a corporate Beneficiary,
(B) USC-OO or other direct or indirect corporate general partner of Beneficiary, or
(ii) the beneficial interest in Trustee, or the interest in any owner of 50% or more of the Note beneficial interest in accordance with its terms; Trustee;
(ivc) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any general partnership interest in Beneficiary or Urban LP; or
(d) the conversion of the general partnership interest in Beneficiary of USC-OO (or other successor general partner of Beneficiary permitted hereunder, or any direct or indirect ownership general partnership interest in Borrower any such successor general partner) to a limited partnership interest; the conversion of Urban REIT's general partnership interest in Urban LP to a limited partnership interest; the conversion of any limited partnership interest in Beneficiary or Urban LP, or in any indemnitor partnership which is a direct or guarantor indirect general partner of Beneficiary or Urban LP, to a general partnership interest; or the admission of any new general partner in Beneficiary or Urban LP, or in any partnership which is a direct or indirect general partner of Beneficiary or Urban LP;" "then the entire balance of the secured indebtedness, plus the Prepayment Premium, shall become immediately due and payable at the option of Lender. This provision shall not apply to transfers of title or interest under this Security Deed any will or any Related testament or applicable law of descent.
B. Notwithstanding the foregoing, Lender agrees that the following Transfers shall not be deemed to violate the foregoing restrictions so long as no Default has occurred and is continuing (but shall be subject to the limitations in the ERISA Agreement; ):
(vi1) permit or suffer any Transfer of limited partnership interests in Beneficiary held by Urban LP to Urban REIT; (2) any ownership Transfer of the general partnership interest in Beneficiary by USC-OO to Urban LP, Urban REIT, or any direct other wholly-owned subsidiary of either of them, or indirect owner any transfer of the stock of USC-OO to Urban LP or any other wholly-owned subsidiary of Urban LP or Urban REIT; (3) any transfer of limited partnership interests in Urban LP or any conversion of limited partnership interests in Urban LP to stock of Urban REIT; (4) any sale, exchange, encumbrance, pledge, or other transfer of the stock of Urban REIT, other than as described in subparagraph (a) of this Section; and (5) when all limited partnership interests in Urban LP have been exchanged for stock of Urban REIT, the dissolution of Urban LP as contemplated by the partnership agreement of Urban LP, provided Urban REIT succeeds to all of the assets, and assumes all of the liabilities of, Urban LP."
C. In addition, notwithstanding the foregoing, if no Default has occurred and is continuing, Lender agrees that, upon the written request of Borrower, Lender shall consent to one (and only one) Transfer, exclusively in the form of (x) a conveyance of the entire Project, (y) an absolute assignment of the entire beneficial interest in the land trust of which Trustee is the trustee, or (z) an absolute assignment of all or substantially all of the partnership interests in Beneficiary (expressly including all general partnership interests), if (and only if):
(a) the Project shall have achieved a Debt Service Coverage Ratio of at least 1.35;
(b) at the time of the Transfer, the Loan-to-Value Ratio (as hereinafter defined) does not exceed 70%;
(c) after such Transfer, legal and beneficial title to the Project shall be held in either (i) a Single Purpose Entity or (ii) one or more pension funds, real estate investment trusts, or institutional investment accounts (or an investment vehicle established by such an entity or entities), and such Single Purpose Entity or other such entity or entities, together with the person(s) assuming the obligations under the Guaranty and Hazardous Materials Agreement (who shall be an Affiliate of the holder of the legal or beneficial interest title to the Project) shall have, exclusive of the Project, an aggregate current net worth of at least $250 million and aggregate total assets of at least $500 million; provided, that in Borrower the case of a pension fund or institutional investment account, the total asset requirement shall be deemed satisfied if the manager or advisor for such fund or account manages or acts as advisor for funds or accounts having aggregate total assets of at least $500 million (includingexclusive of the Project);
(d) the proposed transferee is a person which, without limitation its partnersin the reasonable judgment of Lender, members(i) has a good reputation in the business community and (ii) has established experience in the ownership, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidationoperation and management of similar properties, or consolidation of Borrower if such transferee lacks such experience, the transferee engages a reputable and experienced professional management company that possesses such experience (it being agreed that an owner or any manager which, together with its Affiliates, has under ownership or management, at the time of the direct proposed transfer, at least six regional or indirect owners super-regional shopping centers, comprising an aggregate of at least five million square feet of gross leasable area [inclusive of anchor space, but exclusive of the Project] shall be deemed to have established experience meeting the requirements of this paragraph);
(e) Lender has received thirty (30) days' prior written notice from Borrower or of the conversion proposed transfer and all information reasonably required by Lender to determine whether the proposed transferee meets the criteria set forth in SUBSECTIONS (a) and (b) immediately above;
(f) as consideration for the review of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by Lendersuch transfer, Borrower has paid Lender a reasonable servicing fee (not less than $10,000), which shall be deemed earned by Lender even if such proposed Transfer is not incur approved, and if such Transfer is approved, an additional fee equal to 0.25% of the outstanding principal amount of the Loan at the time of such Transfer; provided, that with respect to any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business Transfer made in connection with the operation any merger, sale, or other transaction involving all or substantially all of the Property. Upon assets of Urban LP or Urban REIT, such additional fee would not exceed Fifty Thousand Dollars ($50,000).
(g) at Lender's option, Lender has received an endorsement to the occurrence Title Policy at Borrower's expense, which endorsement states that the Mortgage remains a first and prior lien against the Real Estate;
(h) the transferee expressly assumes the indebtedness under the Note and all other obligations under the Loan Documents (or such obligations thereunder as a transferee of any partnership interests may have pursuant to the Loan Documents) pursuant to an assumption document satisfactory to Lender; provided, that such assumption document shall not (i) increase the financial obligations of, or personal recourse to, the transferee relative to the obligations of Borrower and Guarantor under the Loan Documents, or (ii) otherwise materially modify the provisions of the prohibited actions specified hereinLoan Documents, then other than (x) the inclusion of representations and warranties relating to the requirements of this Section and covering customary matters relating to the transferee such as due organization, existence, good standing, and authority and the validity and enforceability of the assumption document and the Loan Documents as against the transferee, and (y) provisions which Lender shall have determine are necessary to reflect within the right, at its option, Loan Documents changes in the entities involved in the Loan;
(i) the transferee executes such documents as may be required by Lender to declare perfect or maintain perfection of a first priority security interest in the indebtedness secured by this Security Deed immediately due and payable, irrespective personal property in which Lender has a security interest pursuant to the terms of the maturity date specified Loan Documents;
(j) Lender receives copies of all documents evidencing such Transfer and approves (in its reasonable judgment) the form and content of all such documents, and Lender is furnished with a certified copy of each recorded transfer document (it being agreed that the scope of Lender's approval shall be limited to determining that such documents and the applicable transaction conform to the provisions of the Loan Documents);
(k) such transfer is permitted under the provisions of the ERISA Agreement;
(l) if the Expansion Project (as defined in the NoteFifth Amendment to Loan Agreement) has been commenced, the same has been completed and the requirements set forth in Section 6 thereof have been satisfied; and
(m) Borrower pays all reasonable costs and expenses incurred by Lender in connection with such transfer, including all legal, accounting, title insurance and appraisal fees, whether or not such transfer is actually consummated.
Appears in 1 contract
Due on Sale or Encumbrance. Neither Borrower, Trustor nor its sole member any principal of Trustor shall, without the prior written consent of LenderBeneficiary: (i) create, effect, consent to, suffer to exist, assume, incur, permit (voluntarily or involuntarily, by operation of law or otherwise) any direct or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "“Transfer"”) of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any an option to purchase all or any portion of the Property or any interest therein that results in a transfer of possession or of equitable title to the Property or any portion thereof prior to the payment of the Note Loan in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion part thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower Trustor or any indemnitor or guarantor under this Security Deed of Trust or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower Trustor (including, without limitation its general partners, members, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidation, liquidation or consolidation of Borrower Trustor or any of the direct or indirect owners of Borrower Trustor or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by LenderBeneficiary, Borrower Trustor shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation of the Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender Beneficiary shall have the right, at its option, to declare the indebtedness secured by this Security Deed of Trust immediately due and payable, irrespective of the maturity date specified in the NoteNotes. Notwithstanding the foregoing, it is understood and agreed by Beneficiary that AMERIVEST PROPERTIES INC., a Maryland corporation (“Properties”), may engage in the issuance and trading of stock in Properties as long as Properties maintains its status as a real estate investment trust.
Appears in 1 contract
Due on Sale or Encumbrance. Neither Borrower, Mortgagor nor its sole member member, shall, without the prior written consent of LenderMortgagee: (i) create, effect, consent to, suffer to exist, assume, incur, permit (voluntarily or involuntarily, by operation of law or otherwise) any direct or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "Transfer") of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title to the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower the Mortgagor or any indemnitor or guarantor under this Security Deed Mortgage or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower the Mortgagor (including, without limitation its partners, members, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower the Mortgagor or any of the direct or indirect owners of Borrower Mortgagor or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by LenderMortgagee, Borrower Mortgagor shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation of the Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender Mortgagee shall have the right, at its option, to declare the indebtedness secured by this Security Deed Mortgage immediately due and payable, irrespective of the maturity date specified in the Note.
Appears in 1 contract
Due on Sale or Encumbrance. Neither Borrower, Trustor nor its sole member any principal of Trustor shall, without the prior written consent of LenderBeneficiary: (i) create, effect, consent to, suffer to exist, assume, incur, permit (voluntarily or involuntarily, by operation of law or otherwise) any direct or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "“Transfer"”) of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any an option to purchase all or any portion of the Property or any interest therein that results in a transfer of possession or of equitable title to the Property or any portion thereof prior to the payment of the Note Loan in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion part thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower Trustor or any indemnitor or guarantor under this Security Deed of Trust or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower Trustor (including, without limitation its general partners, members, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidation, liquidation or consolidation of Borrower Trustor or any of the direct or indirect owners of Borrower Trustor or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by LenderBeneficiary, Borrower Trustor shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation of the Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender Beneficiary shall have the right, at its option, to declare the indebtedness secured by this Security Deed of Trust immediately due and payable, irrespective of the maturity date specified in the Note.
Appears in 1 contract
Due on Sale or Encumbrance. Neither Borrower, Trustor nor its sole member any principal of Trustor shall, without the prior written consent of LenderBeneficiary: (i) create, effect, consent to, suffer to exist, assume, incur, permit (voluntarily or involuntarily, by operation of law or otherwise) any direct or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "“Transfer"”) of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or of equitable title to the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower the Trustor or any indemnitor or guarantor under the Note, this Security Deed of Trust or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower the Trustor (including, without limitation its partners, members, trustees, beneficiaries or shareholders); or (vii) permit or suffer the merger, dissolution, liquidation, liquidation or consolidation of Borrower the Trustor or any of the direct or indirect owners of Borrower Trustor or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by LenderBeneficiary, Borrower Trustor shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation of the fee Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender Beneficiary shall have the right, at its option, to declare the indebtedness secured by this Security Deed of Trust immediately due and payable, irrespective of the maturity date specified in the Note.
Appears in 1 contract
Samples: Deed of Trust (KBS Strategic Opportunity REIT, Inc.)
Due on Sale or Encumbrance. Neither Borrower(A) Without Lender’s consent, nor its which consent may be given or withheld in the sole member discretion of Lender, none of the Property Owners, TRT Holdco, TRS Holdco, Intervening Entities, Borrower or any other Person directly or indirectly holding any direct or indirect legal, beneficial, equitable or other interest in the Borrower (at each and every tier or level of ownership) shall, without the prior written consent of Lender: (i) create, effect, consent or permit other Persons to, suffer Transfer (whether or not for consideration or of record) all or any portion of any Property, any legal, equitable, beneficial membership, ownership or other interests in any Property Owner, any Intervening Entity, TRT Holdco, TRS Holdco, Borrower or Collateral or any direct or indirect legal, equitable, beneficial or other interest (1) in all or any portion of any Property, any legal, equitable, beneficial membership, ownership or other interests in any Property Owner or Collateral; (2) in any Property Owner, TRT Holdco, TRS Holdco, any Intervening Entity or Borrower; or (3) at each and every tier or level of ownership, in Borrower’s, TRT Holdco, TRS Holdco’s, Intervening Entities’ or Property Owners’ direct or indirect partners, members, shareholders, beneficial or constituent owners including any owners of the direct or indirect owners of any direct or indirect interests in any such constituent owners, including (a) an installment sales agreement for a price to existbe paid in installments; (b) a sale, assumeassignment or other transfer of, incuror the grant of a security interest in, permit Property Owners’ right, title and interest in and to any Leases or any rents other than pursuant to the Senior Loan Documents or as permitted under this Agreement; (voluntarily c) any direct or involuntarilyindirect voluntary or involuntary sale of any ownership interest in any Property Owner, TRT Holdco, TRS Holdco, any Intervening Entity, Borrower or other Person directly or indirectly owning any direct or indirect interest in any Property Owner, any Intervening Entity, TRT Holdco, TRS Holdco or Borrower; (d) the creation, issuance or redemption of direct or indirect ownership interests by any Property Owner, any Intervening Entity, TRT Holdco, TRS Holdco or Borrower or any Person owning a direct or indirect interest in any Property Owner, any Intervening Entity, TRT Holdco, TRS Holdco or Borrower (at each every tier or level of ownership); (e) any merger, consolidation, dissolution or liquidation; and (f) without limitation of any of the foregoing, any direct or indirect voluntary or involuntary Transfer by any Person which indirectly controls any Property Owner, any Intervening Entity, TRT Holdco, TRS Holdco or Borrower (by operation of law or otherwise) any of its direct or indirect conveyancecontrolling interests in Property Owner, TRT Holdco, TRS Holdco, any Intervening Entity or Borrower. Notwithstanding the foregoing, the following shall not be deemed to be prohibited under this Section 7.8: (i) Transfers of direct or indirect ownership interests in Borrower so long as no Change of Control occurs by virtue of any such Transfers and no new equity invested in Borrower, Property Owner or any Intervening Entity in connection with such Transfer is paid to the original owner of the interest transferred; (ii) a sale or conveyance of a Property to a Person that is not a member of the DCTRT Group or any of their respective Affiliates (except and to the extent a sale to an Affiliate is a Permitted Affiliate Sale of a Property) so long as such sale or transfer complies with Section 7.8(B); (iii) Liens granted to secure a Senior Loan that is a Permitted Refinancing Loan; (iv) any Transfer, sale, assignment or issuance, from time to time, of (a) any securities in DCTRT, or (b) any operating partnership units in Carveout Guarantor, provided, however, that DCTRT and Carveout Guarantor shall continue to (x) Control directly or indirectly, the Borrower and the day to day operations of each Property on the date of (and, after giving effect to) such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Borrower; (v) any Transfer, sale, assignment, transferor issuance from time to time, grant, lien, pledge, mortgage, security interest of all or other encumbrance or disposition (each substantially all of the foregoing defined as "Transfer") shares of the Property stock or an interest therein; (ii) be divested of its title to the Property assets in DCTRT or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title to the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower or any indemnitor or guarantor under this Security Deed or any Related AgreementCarveout Guarantor; (vi) permit or suffer any Transfer by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of DCTRT or Carveout Guarantor; (viii) the listing of the securities in DCTRT or Carveout Guarantor on a national securities exchange; (ix) the conversion of DCTRT or Carveout Guarantor, or any ownership interest in subsidiary thereof (excluding Borrower, any direct Intervening Entity and any Property Owner), into an “open end fund”, or indirect owner (x) a sale, issuance or Transfer of a legal shares or beneficial interest in other securities of DCTRT or any of its affiliates (excluding Borrower, any Intervening Entity and any Property Owner) which are listed on any national securities exchange. Borrower (including, without limitation its acknowledges that Lender has examined and relied on the experience of the DCTRT Group and their general partners, members, trusteesprincipals and beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan and will continue to rely on such ownership of the Properties and Collateral, beneficiaries Property Owners, Intervening Entities, TRT Holdco, TRS Holdco and Borrower as a means of maintaining the value of the Collateral as security for repayment of the Loan and the performance of the other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties and Collateral so as to ensure that, should Borrower default in the repayment of the Loan or shareholdersthe performance of the other Obligations, Lender can recover the Loan by a sale of the Collateral. 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 Loan immediately due and payable upon any Default under this Section 7.8.
(B) Notwithstanding Section 7.8(A) to the contrary, a Transfer that is a Permitted Sale of a Property shall not be an Event of Default. A “Permitted Sale of a Property” is a Sale of a Property that (a) is an all-cash sale; (b) does not result in and after giving effect to such Sale of a Property there does not exist, a Senior Loan Default or Senior Loan Event of Default; (c) with respect to which the Applicable Minimum Senior Release Price is paid to the Senior Lender and applied to the principal balance of the Senior Loan; (d) funds in an amount equal to the Mezzanine Release Payment Amount are concurrently with the closing of such Sale of a Property paid to Lender (to be applied to the Obligations in accordance with Section 2.7); (viie) permit or suffer the merger, dissolution, liquidation, or consolidation buyer in such Permitted Sale is not a member of Borrower the DCTRT Group or any of their respective Affiliates unless such Sale of a Property is effected in connection with a financing of the direct or indirect owners applicable Property and Borrower provides a certificate of Borrower to the effect that such Sale of a Property is to a member of the DCTRT Group (but not a Property Owner, Intervening Entity or Borrower) in order to effect a refinancing (such Sale of a Property, a “Permitted Affiliate Sale of a Property”); (f) Borrower shall have given Lender not less than ten (10) Business Days advance notice of such Sale of a Property; (g) Borrower shall, not later than three (3) Business Days prior to the conversion closing of one type such Sale of legal entity into another type a Property, have provided Lender with a true and complete copy of legal entity. Except the purchase and sale agreement (or analogous document) (such agreement, the “Sale Agreement”) and all amendments thereto, the executed closing and disbursement statement for such Sale of a Property, a statement, setting forth in reasonable detail, certified by an Authorized Officer of Borrower, the Net Sales Proceeds of such Sale of a Property and the calculation thereof, such evidence as expressly consented Lender may reasonably require confirming the amount of the Mezzanine Release Payment Amount, any escrow agreement executed to facilitate such Sale of a Property and irrevocable instructions to such escrowee to disburse the Net Sale Proceeds directly to Lender and a true and complete copy of all documents provided to the Senior Lender in writing by Lenderconnection with such Sale of a Property, related release of a Lien, prepayment and/or defeasance and (h) concurrently with the closing of the Sale of a Property in question, Borrower shall not incur have provided Lender with a certificate of an Authorized Officer that such Sale of a Property is a Permitted Sale of a Property. Borrower shall pay Lender’s reasonable and actual out-of-pocket expenses (including reasonable and actual out-of-pocket attorneys’ fees) in confirming that a Sale of a Property is a Permitted Sale of a Property and the correct amount of the Applicable Minimum Senior Release Price and Net Sales Proceeds. To the extent that any additional indebtedness (secured Net Sales Proceeds are deposited into escrow or unsecured, direct or contingent) other than unsecured debt or trade payables incurred held back as contemplated in the ordinary course definition of business in connection Net Sales Proceeds, such Net Sales Proceeds shall be paid to Lender concurrently with their release from escrow or holdback if and to the operation of the Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender shall have the right, at its option, extent they are released to declare the indebtedness secured by this Security Deed immediately due and payable, irrespective of the maturity date specified in the NoteBorrower.
Appears in 1 contract
Samples: Loan Agreement (Dividend Capital Total Realty Trust Inc.)
Due on Sale or Encumbrance. Neither BorrowerWithout Lender’s consent, which consent may be given or withheld in the sole discretion of Lender, neither Borrower nor its sole member any other Person directly or indirectly holding any direct or indirect legal, beneficial, equitable or other interest in Borrower (at each and every tier or level of ownership) shall, without the prior written consent of Lender: (i) create, effect, consent or permit other Persons to, suffer Transfer (whether or not for consideration or of record) all or any portion of the Mortgaged Property or any direct or indirect legal, equitable, beneficial or other interest (1) in all or any portion of the Mortgaged Property; (2) in Borrower; or (3) at each and every tier or level of ownership, in Borrower’s direct or indirect partners, members, shareholders, beneficial or constituent owners including Guarantor (or the direct or indirect owners of any direct or indirect interests in any such constituent owners), including (a) an installment sales agreement for a price to existbe paid in installments; (b) except as otherwise permitted pursuant to Section 7.5, assumeany Leases or a sale, incurassignment or other transfer of, permit or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (voluntarily c) any direct or involuntarilyindirect voluntary or involuntary sale of any ownership interest in Borrower or other Person directly or indirectly owning any direct or indirect interest in Borrower; (d) the creation, issuance or redemption of direct or indirect ownership interests by Borrower or any Person owning a direct or indirect interest in Borrower (at each every tier or level of ownership); (e) any merger, consolidation, dissolution or liquidation; and (f) without limitation of any of the foregoing, any direct or indirect voluntary or involuntary Transfer by any Person which indirectly controls Borrower (by operation of law or otherwise) any of its direct or indirect conveyancecontrolling interests in Borrower. Notwithstanding the foregoing, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition the following shall not be deemed to be prohibited under this Section 7.11: (each of the foregoing defined as "Transfer"i) of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title to the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or an indirect ownership interest in Borrower or any indemnitor or guarantor under Borrower, by the current owner thereof to a wholly-owned subsidiary of Guarantor and (ii) Transfers of ownership interests in a Person whose stock is publicly traded, so long as (x) no such transfers described in parts (i) and (ii) of this Security Deed or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest sentence result in any Person or Group acquiring, directly or indirectly, more than a forty-nine percent (49%) direct or indirect owner of a legal or beneficial interest in Borrower (includingif such Person or Group did not prior to the Transfer, without limitation its partners, members, trustees, beneficiaries or shareholders); own at least forty-nine percent (vii49%) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower or any of the direct or indirect owners ownership interests in Borrower), unless such Person or Group acquiring, directly or indirectly, more than a forty-nine percent (49%) direct or indirect interest in Borrower has a Credit Rating of Borrower “Baa2” or higher from Xxxxx’x or “BBB” or higher from S&P, or, as applicable, an equivalent rating from another Rating Agency, or, if such Person or Group is not rated by a Rating Agency, has (A) a Net Worth of $2,000,000,000 or more, (B) an EBITDA Interest Coverage of 6.0 or greater and (C) a Total Debt/Capitalization no greater than 30%, and (y) no Change in Control occurs by virtue of such Transfers (other than pursuant to clause (ii) of the conversion definition of one type “Change of legal entity into another type of legal entityControl”). Except as expressly consented to in writing by LenderNotwithstanding the foregoing, Borrower shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred may sell Inventory in the ordinary course of business and transfer or dispose of tangible personal property to Persons that are not Borrower’s Affiliates, which tangible personal property is immediately replaced by an article of equivalent suitability and value or which is no longer necessary in connection with the operation of the Mortgaged Property provided that such transfer or disposal will (i) not have a Material Adverse Effect; (ii) not materially impair the utility of the Mortgaged Property, and (iii) not result in a reduction or abatement of, or right of offset against, the Gross Revenues payable under any Lease or otherwise, and provided that any tangible personal property acquired by Borrower (and not so disposed of) shall be subject to the Lien of the Mortgage. Borrower acknowledges that Lender has examined and relied on the experience of Borrower and Guarantor in owning and operating properties such as the Mortgaged Property in agreeing to make the Loan and will continue to rely on such ownership of the Mortgaged Property and Borrower and Guarantor as a means of maintaining the value of the Mortgaged Property as security for repayment of the Loan and the performance of the other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Borrower default in the repayment of the Loan or the performance of the other Obligations, Lender can recover the Loan by a sale of the Mortgaged Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender shall have the right, at not be required to demonstrate any actual impairment of its option, security or any increased risk of default hereunder in order to declare the indebtedness secured by this Security Deed Loan immediately due and payable, irrespective of the maturity date specified in the Notepayable upon any Default under this Section 7.11.
Appears in 1 contract
Samples: Loan and Security Agreement (Alexion Pharmaceuticals Inc)
Due on Sale or Encumbrance. Neither Borrower, Mortgagor nor its sole member shall, without the prior written consent of LenderMortgagee: (i) create, effect, consent to, suffer to exist, assume, incur, permit (voluntarily or involuntarily, by operation of law or otherwise) any direct or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "“Transfer"”) of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title to the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower the Mortgagor or any indemnitor or guarantor under this Security Deed Mortgage or any of the Related AgreementAgreements; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower the Mortgagor (including, without limitation its partners, members, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower the Mortgagor or any of the direct or indirect owners of Borrower Mortgagor or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by LenderMortgagee, Borrower Mortgagor shall not permit any additional encumbrances on the Property or incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation of the Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender Mortgagee shall have the right, at its option, to declare the indebtedness secured by this Security Deed Mortgage immediately due and payable, irrespective of the maturity date specified in the Note.
Appears in 1 contract
Due on Sale or Encumbrance. Neither BorrowerOther than in connection with any new debt from a lender not affiliated with Borrower in an amount sufficient to repay all of the Loan (other than the Extension Eligible Portion) without Lender's consent, which consent may be given or withheld in the sole discretion of Lender, neither Borrower nor its sole member any other Person directly or indirectly holding any direct or indirect legal, beneficial, equitable or other interest in Borrower (at each and every tier or level of ownership) shall, or permit other Persons, including, without limitation, Eilian, to Transfer (whether or not for consideration or of record), all or any portion of the prior written consent Collateral or any direct or indirect legal, equitable, beneficial or other interest
(1) in all or any portion of Lender: the Collateral; (i2) createin Borrower; or (3) at each and every tier or level of ownership, effectin Borrower's direct or indirect partners, consent tomembers, suffer shareholders, beneficial or constituent owners (or the direct or indirect owners of any direct or indirect interests in any such constituent owners), including (a) an installment sales agreement for a price to existbe paid in installments; (b) any direct or indirect voluntary or involuntary sale of any ownership interest in Borrower or other Person directly or indirectly owning any direct or indirect interest in Borrower; (c) the creation, assumeissuance or redemption of direct or indirect ownership interests by Borrower or any Person owning a direct or indirect interest in Borrower (at each every tier or level of ownership); (d) any merger, incurconsolidation, permit dissolution or liquidation; and (voluntarily e) without limitation of any of the foregoing, any direct or involuntarily, indirect voluntary or involuntary Transfer by any Person which indirectly controls Borrower (by operation of law or otherwise) any of its direct or indirect conveyancecontrolling interests in Borrower. Notwithstanding the foregoing, salethe following shall not be deemed to be prohibited under this Section 6.8: Transfers to a Family Member or trust for the benefit of a Family Member by devise or descent or by operation of law, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "Transfer") of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title to the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or an indirect ownership interest in Borrower Borrower, by the current owner thereof to a Family Member of such current owner (or any indemnitor or guarantor under this Security Deed or any Related Agreement; (vi) permit or suffer any Transfer a trust for the benefit of any such Family Members) and Transfers of ownership interest interests in a Person whose stock is listed or quoted on the New York Stock Exchange, the American Stock Exchange or NASDAQ, so long as (x) no such transfers described in parts (i), (ii) and (iii) of this sentence result in any Person or Group acquiring, directly or indirectly, more than a forty-nine percent (49%) direct or indirect owner of a legal or beneficial interest in Borrower (includingif such Person or Group did not, without limitation its partnersprior to the Transfer, members, trustees, beneficiaries or shareholders); own at least forty-nine percent (vii49%) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower or any of the direct or indirect owners ownership interests in Borrower), and (y) no Change in Control occurs by virtue of such Transfers. Borrower acknowledges that Lender has examined and relied on the experience of Borrower or and its members and principals in agreeing to make the conversion Loan and will continue to rely on such ownership of one type Borrower as security for repayment of legal entity into another type the Loan and the performance of legal entitythe other Obligations. Except as expressly consented Notwithstanding anything to the contrary contained herein, in writing by Lender, Borrower no event shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred indirect interest in the ordinary course of business in connection with the operation of the Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender shall have the right, at its option, Borrower be Transferred to declare the indebtedness secured by this Security Deed immediately due and payable, irrespective of the maturity date specified in the Notean Embargoed Person.
Appears in 1 contract
Due on Sale or Encumbrance. Neither Borrower, Grantor nor its sole member shall, without the prior written consent of LenderBeneficiary: (i) create, effect, consent to, suffer to exist, assume, incur, permit (voluntarily or involuntarily, by operation of law or otherwise) any direct or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "Transfer") of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title to the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower the Grantor or any indemnitor or guarantor under this Security Deed of Trust or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower the Grantor (including, without limitation its partners, members, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower the Grantor or any of the direct or indirect owners of Borrower Grantor or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by LenderBeneficiary, Borrower Grantor shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation of the Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender Beneficiary shall have the right, at its option, to declare the indebtedness secured by this Security Deed of Trust immediately due and payable, irrespective of the maturity date specified in the Note.
Appears in 1 contract
Samples: Deed of Trust (Inland Western Retail Real Estate Trust Inc)
Due on Sale or Encumbrance. Neither BorrowerExcept for a Transfer of the Release Property upon the satisfaction of the Subdivision and Partial Release Requirements, without Lender’s consent, which consent may be given or withheld in the sole discretion of Lender, neither Borrower nor its sole member any other Person directly or indirectly holding any direct or indirect legal, beneficial, equitable or other interest in Borrower (at each and every tier or level of ownership) shall, without the prior written consent of Lender: (i) create, effect, consent or permit other Persons to, suffer Transfer (whether or not for consideration or of record) all or any portion of the Mortgaged Property or any direct or indirect legal, equitable, beneficial or other interest (1) in all or any portion of the Mortgaged Property; (2) in Borrower; or (3) at each and every tier or level of ownership, in Borrower’s direct or indirect partners, members, shareholders, beneficial or constituent owners including Borrower Representative, any owners of Borrower Representative (or the direct or indirect owners of any direct or indirect interests in any such constituent owners), including (a) an installment sales agreement for a price to existbe paid in installments; (b) any Leases (other than as permitted by Section 7.5) or a sale, assumeassignment or other transfer of, incuror the grant of a security interest in, permit Borrower’s right, title and interest in and to any Leases or any Rents; (voluntarily c) any direct or involuntarilyindirect voluntary or involuntary sale of any ownership interest in Borrower or other Person directly or indirectly owning any direct or indirect interest in Borrower; (d) the creation, issuance or redemption of direct or indirect ownership interests by Borrower or any Person owning a direct or indirect interest in Borrower (at each every tier or level of ownership); (e) any merger, consolidation, dissolution or liquidation; and (f) without limitation of any of the foregoing, any direct or indirect voluntary or involuntary Transfer by any Person which indirectly controls Borrower (by operation of law or otherwise) any of its direct or indirect conveyancecontrolling interests in Borrower. Notwithstanding the foregoing, salethe following shall not be deemed to be prohibited under this Section 7.12: (i) Transfers to a Family Member or trust for the benefit of a Family Member by devise or descent or by operation of law, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "Transfer") of the Property or an interest therein; (ii) be divested a Transfer of its title an indirect ownership interest in Borrower, by the current owner thereof to a Family Member of such current owner (or a trust for the Property or benefit of any interest therein; such Family Members), (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title the Master Lease and Transfers by the Master Lessee to the Property or any portion thereof prior to extent permitted under the payment of the Note in accordance with its terms; Master Lease, (iv) enter into any lease giving Transfers of ownership interests in a Person whose stock is listed or quoted on the tenant any option to purchase New York Stock Exchange, the Property American Stock Exchange or any portion thereof; NASDAQ and (v) permit a Transfer or suffer any Transfer series of any related Transfers, or the creation or issuance of direct or indirect ownership interest interests in Borrower Carveout Guarantor, in connection with the merger, consolidation or any indemnitor or guarantor under this Security Deed or any Related Agreement; (vi) permit or suffer any Transfer reorganization of Carveout Guarantor, so long as, in the case of any ownership interest transactions described in clauses (i) through (v) above, either of the following is true: (x) no such transaction results in any Person or Group acquiring, directly or indirectly, more than a forty-nine percent (49%) direct or indirect owner of a legal or beneficial interest in Borrower (includingif such Person or Group did not, without limitation its partnersprior to such transaction, members, trustees, beneficiaries or shareholders); own at least forty-nine percent (vii49%) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower or any of the direct or indirect owners ownership interests in Borrower); or (y) after giving effect to such transaction, both of Borrower the following conditions are satisfied: (I) the Tenant under the Master Lease is either Equinix or an entity that succeeds to the obligations of Equinix under the Master Lease (by assignment, operation of law or otherwise) and satisfies (or whose obligations under the Master Lease are guarantied by an entity that satisfies) the Investment Grade Criteria or the conversion Financial Strength Criteria and (II) either Equinix (or another entity that succeeds to the obligations of one type Equinix and satisfies the Investment Grade Criteria or the Financial Strength Criteria) remains obligated with respect to the Carveout Guaranty, the Environmental Indemnity Agreement and the Completion Guaranty or another entity that satisfies the Investment Grade Criteria or the Financial Strength Criteria assumes the obligations of legal entity into another type of legal entityCarveout Guarantor under the Carveout Guaranty, the Environmental Indemnity Agreement and the Completion Guaranty and executes such documents assuming the Carveout Guaranty, the Environmental Indemnity Agreement and the Completion Guaranty in form and substance reasonably acceptable to Lender. Except as expressly consented to in writing by LenderNotwithstanding the foregoing, Borrower shall may without Lender’s prior written approval, (i) grant or modify standard utility and telecommunication easements serving the Land, (ii) grant to one or more of its tenants or any third party the right to use on commercially reasonable terms the capacity of the fiber ring located on the Mortgaged Property, provided that such additional use does not incur impair or reduce the capacity required for the operation of data centers or IBX collocation facilities on any additional indebtedness portion of the Mortgaged Property, or (secured or unsecured, direct or contingentiii) other than unsecured debt or trade payables incurred sell Inventory in the ordinary course of business and transfer or dispose of tangible personal property to Persons that are not Borrower’s Affiliates, which tangible personal property is immediately replaced by an article of equivalent suitability and value or which is no longer necessary in connection with the operation of the Mortgaged Property provided that such transfer or disposal will (i) not have a Material Adverse Effect, (ii) not materially impair the utility of the Mortgaged Property, and (iii) not result in a reduction or abatement of, or right of offset against, the Gross Revenues payable under any Lease or otherwise, and provided that any tangible personal property acquired by Borrower (and not so disposed of) shall be subject to the Lien of the Mortgage. Borrower acknowledges that Lender has examined and relied on the experience of Borrower and, as applicable, its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Mortgaged Property in agreeing to make the Loan and will continue to rely on such ownership of the Mortgaged Property and Borrower as a means of maintaining the value of the Mortgaged Property as security for repayment of the Loan and the performance of the other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Borrower default in the repayment of the Loan or the performance of the other Obligations, Lender can recover the Loan by a sale of the Mortgaged Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender shall have the right, at not be required to demonstrate any actual impairment of its option, security or any increased risk of default hereunder in order to declare the indebtedness secured by this Security Deed Loan immediately due and payablepayable upon any Default under this Section 7.12. Notwithstanding anything to the foregoing contained herein, irrespective other than transfers of stock in Carveout Guarantor, in no event shall the maturity date specified Mortgaged Property or any direct or indirect interest in the NoteBorrower be transferred to an Embargoed Person.
Appears in 1 contract
Samples: Development Loan and Security Agreement (Equinix Inc)
Due on Sale or Encumbrance. Neither Borrower, Mortgagor nor its sole member any principal of Mortgagor shall, without the prior written consent of LenderMortgagee: (i) create, effect, consent to, suffer to exist, assume, incur, permit (voluntarily or involuntarily, by operation of law or otherwise) any direct or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "“Transfer"”) of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable legal title to the Property or any portion thereof prior to the payment of the Note in full in accordance with its terms; (iv) enter into any lease Lease giving the tenant any option to purchase the Property or any portion thereof; (v) except as otherwise expressly permitted herein or in any Related Agreement, permit or suffer any Transfer of any direct or indirect ownership interest in Borrower or any entity comprising Mortgagor, in any indemnitor or guarantor under this Security Deed Mortgage or any Related Agreement; (vi) permit , or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower any entity comprising Mortgagor (including, without limitation its partners, members, trustees, beneficiaries or shareholders); or (viivi) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower any entity comprising Mortgagor or any of the direct or indirect owners of Borrower any entity comprising Mortgagor or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by LenderMortgagee, Borrower Xxxxxxxxx shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation of the Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender shall have the right, at its option, to declare the indebtedness secured by this Security Deed immediately due and payable, irrespective of the maturity date specified in the Note.
Appears in 1 contract
Samples: Mortgage Agreement (GTJ REIT, Inc.)
Due on Sale or Encumbrance. Neither BorrowerBorrower shall not and shall not permit others to convey, nor its sole member shallassign, without the prior written consent of Lender: (i) createsell, effectmortgage, consent encumber, pledge, hypothecate, grant a security interest in, grant options with respect to, suffer to existor otherwise dispose of (directly or indirectly, assume, incur, permit (voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) all or any direct portion of any legal or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security beneficial interest (a) in all or other encumbrance or disposition (each of the foregoing defined as "Transfer") any portion of the Property or an interest thereinthe Leases; (iib) be divested if Borrower is a corporation, in the stock interest of its title to the Property Borrower or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer other beneficial owner of possession or equitable title to the Property all or any portion thereof prior to the payment of the Note in accordance with its termsProperty; (ivc) enter into any lease giving the tenant any option to purchase the Property in Borrower (or any portion thereoftrust of which Borrower is a trustee); or (vd) permit if Borrower is a limited or suffer general partnership, joint venture, trust, nominee trust, tenancy in common or other unincorporated form of business association or form of ownership, in any Transfer of any person, firm or entity having a direct or indirect legal or beneficial ownership interest in Borrower or Borrower, including any indemnitor or guarantor under this Security Deed or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower (including, without limitation its partners, members, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidation, or consolidation any general partner of Borrower or in any of the direct or indirect owners of Borrower or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by Lender, Borrower shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation of the Property. Upon the occurrence shares of any corporate general partner of the prohibited actions specified hereinBorrower. Any such transfer or encumbrance, then as aforesaid, shall be deemed to be an Event of Default hereunder, and shall entitle Lender shall have the right, at its option, to declare the indebtedness secured by this Security Deed Loan immediately due and payable, irrespective together with any applicable Prepayment Fee. Notwithstanding the foregoing, up to twenty-five percent (25%), in the aggregate, of the maturity date specified ownership interest in Borrower may be transferred, subject to the security interest set forth in the NotePledge Agreement, with the prior written approval of Lender, such approval not to be unreasonably withheld or delayed. Any transferee pursuant to the preceding sentence shall execute any documentation reasonably required by Lender to evidence and confirm the security interest set forth in the Pledge Agreement.
Appears in 1 contract
Samples: Loan Agreement (Senior Tour Players Development Inc)
Due on Sale or Encumbrance. Neither BorrowerExcept for a Transfer of the Release Property pursuant to which the Partial Release Requirements are satisfied, without Lender’s consent, which consent may be given or withheld in the sole discretion of Lender, neither Borrower nor its sole member any other Person directly or indirectly holding any direct or indirect legal, beneficial, equitable or other interest in Borrower (at each and every tier or level of ownership) shall, without the prior written consent of Lender: (i) create, effect, consent or permit other Persons to, suffer Transfer (whether or not for consideration or of record) all or any portion of the Mortgaged Property or any direct or indirect legal, equitable, beneficial or other interest (1) in all or any portion of the Mortgaged Property; (2) in Borrower; or (3) at each and every tier or level of ownership, in Borrower’s direct or indirect partners, members, shareholders, beneficial or constituent owners including Borrower Representative, any owners of Borrower Representative (or the direct or indirect owners of any direct or indirect interests in any such constituent owners), including (a) an installment sales agreement for a price to existbe paid in installments; (b) any Leases (other than as permitted by Section 7.5) or a sale, assumeassignment or other transfer of, incuror the grant of a security interest in, permit Borrower’s right, title and interest in and to any Leases or any Rents; (voluntarily c) any direct or involuntarilyindirect voluntary or involuntary sale of any ownership interest in Borrower or other Person directly or indirectly owning any direct or indirect interest in Borrower; (d) the creation, issuance or redemption of direct or indirect ownership interests by Borrower or any Person owning a direct or indirect interest in Borrower (at each every tier or level of ownership); (e) any merger, consolidation, dissolution or liquidation; and (f) without limitation of any of the foregoing, any direct or indirect voluntary or involuntary Transfer by any Person which indirectly controls Borrower (by operation of law or otherwise) any of its direct or indirect conveyancecontrolling interests in Borrower. Notwithstanding the foregoing, salethe following shall not be deemed to be prohibited under this Section 7.11: (i) Transfers to a Family Member or trust for the benefit of a Family Member by devise or descent or by operation of law, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "Transfer") of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title to the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or an indirect ownership interest in Borrower Borrower, by the current owner thereof to a Family Member of such current owner (or any indemnitor or guarantor under this Security Deed or any Related Agreement; (vi) permit or suffer any Transfer a trust for the benefit of any such Family Members), (iii) the Master Lease and Transfers by the Master Lessee to the extent permitted under the Master Lease and (iv) Transfers of ownership interest interests in a Person whose stock is listed or quoted on the New York Stock Exchange, the American Stock Exchange or NASDAQ, so long as (x) no such transfers described in parts (i), (ii) and (iv) of this sentence result in any Person or Group acquiring, directly or indirectly, more than a forty-nine percent (49%) direct or indirect owner of a legal or beneficial interest in Borrower (includingif such Person or Group did not, without limitation its partnersprior to the Transfer, members, trustees, beneficiaries or shareholders); own at least forty-nine percent (vii49%) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower or any of the direct or indirect owners of Borrower or ownership interests in Borrower). Notwithstanding the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by Lenderforegoing, Borrower shall may without Lender’s prior written approval, (i) grant or modify standard utility and telecommunication easements serving the Land, (ii) grant to one or more of its tenants or any third party the right to use on commercially reasonable terms the capacity of the fiber ring located on the Mortgaged Property, provided that such additional use does not incur impair or reduce the capacity required for the operation of data centers or IBX collocation facilities in Building C, Building E and Building F or on any additional indebtedness portion of the Mortgaged Property, or (secured or unsecured, direct or contingentiii) other than unsecured debt or trade payables incurred sell Inventory in the ordinary course of business and transfer or dispose of tangible personal property to Persons that are not Borrower’s Affiliates, which tangible personal property is immediately replaced by an article of equivalent suitability and value or which is no longer necessary in connection with the operation of the Mortgaged Property provided that such transfer or disposal will (A) not have a Material Adverse Effect, (B) not materially impair the utility of the Mortgaged Property, and (C) not result in a reduction or abatement of, or right of offset against, the Gross Revenues payable under any Lease or otherwise, and provided that any tangible personal property acquired by Borrower (and not so disposed of) shall be subject to the Lien of the Mortgage. Borrower acknowledges that Lender has examined and relied on the experience of Borrower and, as applicable, its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Mortgaged Property in agreeing to make the Loan and will continue to rely on such ownership of the Mortgaged Property and Borrower as a means of maintaining the value of the Mortgaged Property as security for repayment of the Loan and the performance of the other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Borrower default in the repayment of the Loan or the performance of the other Obligations, Lender can recover the Loan by a sale of the Mortgaged Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender shall have the right, at not be required to demonstrate any actual impairment of its option, security or any increased risk of default hereunder in order to declare the indebtedness secured by this Security Deed Loan immediately due and payablepayable upon any Default under this Section 7.11. Notwithstanding anything to the foregoing contained herein, irrespective other than transfers of stock in Carveout Guarantor, in no event shall the maturity date specified Mortgaged Property or any direct or indirect interest in the NoteBorrower be transferred to an Embargoed Person.
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Due on Sale or Encumbrance. Neither Borrower(a) Except as set forth in Section B11(d) below, nor its sole member shallthe Note secured by this Deed of Trust is personal to Trustor and not assignable. In accepting the Note, Beneficiary has relied upon Trustor's credit, Trustor's interest in the Trust Property, and financial market conditions at the time the loan is made. In the event of a sale, conveyance, transfer or encumbrance of the title to or possession of all or part of the Trust Property, directly or indirectly, either voluntarily, involuntarily or by operation of law, without the prior written consent of Lender: Beneficiary (iwhich consent may be withheld at Beneficiary's sole discretion), Trustor shall be in default under the Note and this Deed of Trust and Beneficiary may declare the entire balance of the indebtedness owing under the Note to be immediately due and payable.
(b) createWithout limiting the generality or effect of the foregoing, effect, consent to, suffer waiver by Beneficiary of its right to exist, assume, incur, permit (voluntarily accelerate the loan upon any transfer or involuntarily, by operation of law or otherwise) any direct or indirect conveyance, sale, assignment, contract to transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each to require satisfaction of the foregoing defined as "Transfer") conditions set forth in this Section B11, shall not be deemed a waiver by Beneficiary of its right to accelerate the indebtedness occurring under the Note upon any other transfer or contract to transfer or of its right upon such transfer or contract to transfer to require satisfaction of the Property or an interest therein; conditions set forth above in this Section B11.
(iic) For the purpose of, and without limiting the generality of the foregoing, except as permitted in Section B11(d), the occurrence at any time of any of the following events, without Beneficiary's prior written consent, shall be divested deemed to be a transfer of its title to the Property Trust Property:
i. Any sale, conveyance, assignment or other transfer of, or the grant of a security interest in, all or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer part of possession or the legal and/or equitable title to the Property Trust Property; and
ii. Any sale, conveyance, assignment or any portion thereof prior to other transfer of, or the payment grant of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower or any indemnitor or guarantor under this Security Deed or any Related Agreement; (vi) permit or suffer any Transfer of any ownership a security interest in any direct or indirect owner of a legal or beneficial the ownership interests in Trustor.
(d) Notwithstanding anything in this Section B11 to the contrary, Trustor may, without Beneficiary's consent, transfer its interest in Borrower (including, without limitation its partners, members, trustees, beneficiaries the Trust Property to any affiliate of Trustor including a limited liability company or shareholders); (vii) permit other legal entity controlled by Trustor or suffer the merger, dissolution, liquidation, or consolidation of Borrower or any an affiliate. No such assignment shall release Trustor from personal liability for payment and performance of the direct terms and conditions of this Deed of Trust. "Affiliate" means a person or indirect owners of Borrower entity directly or the conversion of one type of legal entity into another type of legal entityindirectly controlling, controlled by or under common control with Trustor. Except as expressly consented to in writing by Lender, Borrower No such assignment shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation release Trustor from personal liability for payment and performance of the Property. Upon the occurrence terms and conditions of any this Deed of the prohibited actions specified herein, then Lender shall have the right, at its option, to declare the indebtedness secured by this Security Deed immediately due and payable, irrespective of the maturity date specified in the NoteTrust.
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Due on Sale or Encumbrance. Neither Borrower, Mortgagor nor its sole member shall, without the prior written consent of LenderMortgagee: (i) create, effect, consent to, suffer to exist, assume, incur, permit (voluntarily or involuntarily, by operation of law or otherwise) any direct or indirect conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security interest or other encumbrance or disposition (each of the foregoing defined as "Transfer") of the Property or an interest therein; (ii) be divested of its title to the Property or any interest therein; (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title to the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower the Mortgagor or any indemnitor or guarantor under this Security Deed Mortgage or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower the Mortgagor (including, without limitation its partners, members, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower the Mortgagor or any of the direct or indirect owners of Borrower Mortgagor or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by LenderMortgagee, Borrower Mortgagor shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred in the ordinary course of business in connection with the operation of the Property. Upon the occurrence of any of the prohibited actions specified herein, then Lender Mortgagee shall have the right, at its option, to declare the indebtedness secured by this Security Deed Mortgage immediately due and payable, irrespective of the maturity date specified in the Note.
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Due on Sale or Encumbrance. Neither BorrowerIt shall be an Event of Default and, nor its at the sole member shalloption of Lender, Lender may accelerate the Obligations and the entire Obligations (including the Prepayment Premium) shall become immediately due and payable, if, without the Lender’s prior written consent (which may be withheld for any or no reason, including the possibility of Lender: an ERISA violation or the proposed transferee’s failure to agree in writing to Lender increasing the interest payable on the Obligations to any rate, changing any other terms (iincluding maturity) createof the Obligations or Documents, effect, consent to, suffer to exist, assume, incur, permit (voluntarily or involuntarily, by operation requiring the payment of law or otherwisea transfer fee) any direct or indirect conveyanceof the following shall occur:
(a) Borrower shall sell, saleconvey, assignmentassign, transfer, grant, lien, pledge, mortgage, security interest dispose of or other encumbrance or disposition (each of the foregoing defined as "Transfer") of the Property or an interest therein; (ii) be divested of its title to, convey security title to the Property, mortgage, encumber or cause to be encumbered (except for the imposition of mechanics’ or materialmens’ liens) the Property or any interest therein, in any manner or way, whether voluntary or involuntary (except only pursuant to the One-Time Transfer provision set forth in Section 13 of the Note); or
(b) in the event of any merger, consolidation, sale, transfer, assignment, or dissolution involving all or substantially all of the assets of Borrower, or any managing member of the original Borrower, except only a merger of another publicly traded entity into Borrower, Eagle Hospitality Properties Trust, Inc., a Maryland corporation (“EHPTI”), or EHP Operating Partnership, L.P., a Maryland limited partnership (“EHPOP”), or a merger of Borrower, EHPTI or EHPOP into another publicly traded entity, provided, however that the surviving entity (i) is equal to or larger in net assets and value than Borrower, (ii) has a credit quality and the experience in managing similar properties equal to or greater than Borrower in the judgment of Lender, and (iii) enter into a contract assumes all obligations of Borrower with respect to sell the Loan pursuant to an assumption agreement in form and content approved by Lender; or
(c) in the event of the assignment, transfer, pledge, voluntary or grant involuntary sale, or encumbrance (or any option to purchase that results in a of the foregoing at one time or over any period of time), except only the transfer of possession operating partnership units in EHPOP in connection with the purchase of assets or equitable title to properties by EHPTI or EHPOP, of:
(i) 25% or more of (1) the Property or any portion thereof prior to the payment ownership interests in Borrower existing as of the Note in accordance with its terms; date of this Instrument, regardless of the type or form of entity of Borrower, (iv2) enter into any lease giving the tenant any option to purchase the Property voting stock or any portion thereof; (v) permit or suffer any Transfer ownership interest of any direct corporation or indirect ownership interest in Borrower or any indemnitor or guarantor under this Security Deed or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower (includinglimited liability company which is, without limitation its partnersrespectively, members, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidation, or consolidation managing member of Borrower or any corporation or limited liability company directly or indirectly owning 25% or more of any such corporation or limited liability company existing as of the direct date of this Instrument, (3) the ownership interests of any owner of twenty-five percent (25%) or indirect owners more of the beneficial interests of Borrower if Borrower is a trust existing as of the date of this Instrument; or
(ii) any managing member’s interest or general partner’s interest in (1) Borrower, (2) a partnership or limited liability company which is in Borrower’s chain of ownership and which is derivatively liable for the conversion obligations of one type of legal entity into another type of legal entity. Except as expressly consented Borrower, or (3) any general partner or managing member who has the right to in writing by Lender, Borrower shall not incur any additional indebtedness (secured participate directly or unsecured, direct or contingent) other than unsecured debt or trade payables incurred indirectly in the ordinary course of business in connection with the operation control of the Property. Upon the occurrence management or operations of any of the prohibited actions specified herein, then Lender shall have the right, at its option, to declare the indebtedness secured by this Security Deed immediately due and payable, irrespective of the maturity date specified in the Note.Borrower; or
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Samples: Mortgage and Security Agreement (Eagle Hospitality Properties Trust, Inc.)
Due on Sale or Encumbrance. Neither (A) Without Lender’s consent, which consent may be given or withheld in the sole discretion of Lender, neither Borrower nor any other Person directly or indirectly holding any direct or indirect legal, beneficial, equitable or other interest in Borrower (at each and every tier or level of ownership up to the level of VantagePoint’s ownership of Borrower, nor its sole member ) shall, without the prior written consent of Lender: (i) create, effect, consent or permit other Persons to, suffer Transfer (whether or not for consideration or of record) all or any portion of the Mortgaged Property or any direct or indirect legal, equitable, beneficial or other interest (1) in all or any portion of the Mortgaged Property; or (2) in Borrower (if the, direct or indirect, effect thereof is a Change in Control or might result in a Change of Control in connection with remedial action or transfers in lieu of remedial actions), including (a) an installment sales agreement for a price to existbe paid in installments; (b) any Leases (other than as permitted by Section 7.5) or a sale, assumeassignment or other transfer of, incuror the grant of a security interest in, permit Borrower’s right, title and interest in and to any Leases; (voluntarily c) any direct or involuntarilyindirect voluntary or involuntary sale of any ownership interest in Borrower or other Person directly or indirectly owning any direct or indirect interest in Borrower; (d) the creation, issuance or redemption of direct or indirect ownership interests by Borrower or any Person owning a direct or indirect interest in Borrower (at each every tier or level of ownership); (e) any merger, consolidation, dissolution or liquidation; and (f) without limitation of any of the foregoing, any direct or indirect voluntary or involuntary Transfer by any Person which indirectly controls Borrower (by operation of law or otherwiseotherwise at each and every tier or level of ownership up to the level of VantagePoint’s ownership of Borrower) any of its direct or indirect conveyancecontrolling interests in Borrower. Notwithstanding the foregoing, salethe following shall not be deemed to be prohibited under this Section 7.11: (i) Transfers to the extent described in subsection (c), assignment(d), transfer, grant, lien, pledge, mortgage, security interest (e) or other encumbrance or disposition (each of the foregoing defined as "Transfer"f) of the Property preceding sentence, so long as no Change in Control occurs, either individually or an interest thereinin the aggregate, in a single transaction or series of related transactions, by virtue of such Transfers; (ii) be divested of its title to the Property or any interest thereina Qualified Public Offering; and (iii) enter into a contract to sell or grant any option to purchase that results in a transfer of possession or equitable title to Qualified Sale Transaction. Notwithstanding the Property or any portion thereof prior to the payment of the Note in accordance with its terms; (iv) enter into any lease giving the tenant any option to purchase the Property or any portion thereof; (v) permit or suffer any Transfer of any direct or indirect ownership interest in Borrower or any indemnitor or guarantor under this Security Deed or any Related Agreement; (vi) permit or suffer any Transfer of any ownership interest in any direct or indirect owner of a legal or beneficial interest in Borrower (including, without limitation its partners, members, trustees, beneficiaries or shareholders); (vii) permit or suffer the merger, dissolution, liquidation, or consolidation of Borrower or any of the direct or indirect owners of Borrower or the conversion of one type of legal entity into another type of legal entity. Except as expressly consented to in writing by Lenderforegoing, Borrower shall not incur any additional indebtedness (secured or unsecured, direct or contingent) other than unsecured debt or trade payables incurred may sell Inventory in the ordinary course of business and transfer or dispose of tangible personal property to Persons that are not Borrower’s Affiliates, which tangible personal property, to the extent included in the Mortgaged Property, is immediately replaced by an article of equivalent suitability and value or which is no longer necessary in connection with the operation of the Property. Upon Mortgaged Property provided that such transfer or disposal will (i) not have a Material Adverse Effect, and (ii) not materially impair the occurrence of any utility of the prohibited actions specified hereinMortgaged Property, then and provided that any tangible personal property acquired by Borrower (and not so disposed of) shall be subject to the Lien of the Mortgage. Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its officers, shareholders and principals in owning and operating properties such as the Mortgaged Property in agreeing to make the Loan and will continue to rely on such ownership of the Mortgaged Property and Borrower as a means of maintaining the value of the Mortgaged Property as security for repayment of the Loan and the performance of the other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Borrower default in the repayment of the Loan or the performance of the other Obligations, Lender can recover the Loan by a sale of the Mortgaged Property.
(B) Notwithstanding anything contained herein to the contrary, the Borrower shall have the rightright to transfer the Mortgaged Property (the “Property Transfer”), subject to the following conditions: (i) there being no Event of Default under the Loan Documents at the time of the Property Transfer, (ii) Lender’s approval (to be given or withheld in Lender’s sole discretion) of the Property Transfer and the proposed transferee (the “Transferee”), together with the Transferee’s direct and indirect beneficial owners, (iii) the Transferee shall expressly assume the Obligations and the Loan Documents pursuant to documentation satisfactory to Lender, and shall deliver to Lender such assumption agreements, Financing Statements, legal opinions, title insurance policies or endorsements, lien searches, and such other documentation as Lender may reasonably require, (iv) Borrower or the Transferee shall pay a fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of the Property Transfer, (v) the replacement property manager, if any, must be approved by Lender, and any replacement property management agreement must be approved by Lender and shall comply with the requirements of the Loan Documents, (viii) in the event of a Securitization of the Loan, Transferee must obtain confirmation from the Rating Agencies that the Property Transfer and the assumption of the Loan by Transferee will not result in any downgrade, withdrawal or qualification of any rating in connection with any such Securitization, and (ix) Borrower or Transferee shall pay all costs and expenses incurred by Lender in connection with the Property Transfer, including title insurance premiums, documentation costs and reasonable attorneys’ fees. No transfer shall release Borrower from its option, obligations under the Loan Documents with respect to events arising or occurring prior to the date of transfer.
(C) 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 indebtedness secured by this Security Deed Loan immediately due and payablepayable upon any Default under this Section 7.11. Notwithstanding anything to the foregoing contained herein, irrespective of in no event shall the maturity date specified Mortgaged Property or any direct or indirect interest in the NoteBorrower be transferred to an Embargoed Person.
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