Common use of ONE-TIME ASSUMPTION Clause in Contracts

ONE-TIME ASSUMPTION. Notwithstanding the foregoing provisions of this PARAGRAPH 15, Lender shall not withhold its consent to a sale of the entire Property and assumption of this Loan (hereinafter, an "Assumption"), provided that each of the following terms and conditions are satisfied: (i) Borrower is in compliance with all terms and conditions of the Loan Documents and no default has occurred and is then continuing hereunder or under any of the other Loan Documents and the proposed Transferee agrees to continue to comply with and be bound by all provisions of the Loan Documents; (ii) Borrower gives Lender written notice of the terms of such prospective Assumption not less than forty-five (45) days before the date on which such Assumption is scheduled to take place and, concurrently therewith, gives Lender all such information concerning Transferee as Lender reasonably requests. Lender shall have the right to approve or disapprove the proposed Transferee. In determining whether to give or withhold its approval of the proposed Transferee, Lender shall consider Transferee's experience in owning and operating a facility similar to the Property, Transferee's entity structure, Transferee's financial strength, the Transferee's general business standing and Transferee's relationship and experience with contractors, vendors, tenants, lenders and other business entities; (iii) Borrower shall pay Lender (A) in connection with such proposed Assumption, all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees incurred by Lender and any rating agency approval fees (whether such transfer is approved or rejected), plus (B) concurrently with the closing of such Assumption, a nonrefundable assumption fee in an amount equal to 1% of the then outstanding principal balance of the Note; (iv) Transferee executes and delivers such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may reasonably require, including, without limitation, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Assumption, all in form and substance satisfactory to Lender, including, without limitation, an endorsement or endorsements to Lender's loan title insurance policy insuring the lien of this Mortgage, extending the effective date of such policy to the date of execution and delivery of the assumption agreement referenced in this subparagraph 15(c)(iv), with no additional exceptions added to such policy, except for items consented to by Lender or permitted under this Mortgage, and insuring that fee simple title to the Property is vested in the Transferee; (v) Borrower executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the other security documents through and including the date of the closing of the Assumption, which agreement shall be in form and substance satisfactory to Lender and shall be binding upon the Transferee; (vi) subject to the provisions of PARAGRAPH 11 of the Note, such Assumption is not construed so as to relieve Borrower of any personal liability under the Note or any of the Loan Documents for any act or events occurring or obligations arising prior to or simultaneously with the closing of such Assumption (excluding payment of the principal amount of the Note and interest accrued thereon) and Borrower executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of such personal liability; (vii) Transferee shall furnish, if Transferee is a corporation, partnership or other entity, all appropriate papers evidencing Transferee's capacity in good standing and the qualification of the signers to execute the assumption of the Obligations, which paper shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners, members or shareholders of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be) as Lender shall require, shall be single purpose entities, whose formation documents shall be approved by counsel to Lender. Transferee must comply with the provisions of PARAGRAPH 17 hereof; (viii) Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel stating that (A) Transferee's formation documents provide proof for the matters described in subparagraph (vi) above, (B) the assets of Transferee will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Transferee, in the event of a bankruptcy or insolvency of any such entity if required by any rating agency after the securitization of the Loan, (C) the assumption of the Obligations has been duly authorized, executed and delivered and the Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (D) Transferee and any entity which is a controlling stockholder, general partner or managing member of Transferee have been duly organized and are in good standing and in existence, and (E) with respect to such other matters as Lender or any applicable rating agency may request; and (ix) if the Loan has previously been securitized pursuant to PARAGRAPH 44, Lender shall have received evidence in writing from the rating agencies to the effect the proposed transfer will not result in a downgrade, qualification, reduction or withdrawal of any rating initially assigned or to be assigned to any securities issued in connection with the Loan. Any such Assumption shall not be construed as to relieve any current Guarantors of their obligations under any guarantees or indemnity agreements executed in connection with the Note, provided that if Transferee or a party associated with Transferee approved by Lender in its sole discretion assumes the obligations of the current Guarantors under their guarantees or indemnity agreements and Transferee or such party associated with Transferee if applicable, executes, without any cost or expense to Lender, a new guarantee and/or indemnity agreement in form and substance satisfactory to Lender, then Lender shall release the current Guarantors from all obligations first arising under their guarantees or indemnity agreements after the closing of such Assumption. If the Transferee under this

ONE-TIME ASSUMPTION. Notwithstanding the foregoing provisions of this PARAGRAPH Paragraph 15, Lender Beneficiary shall not withhold its consent to a sale of the entire Property and assumption of this Loan (hereinafter, an "“Assumption"”), provided that each of the following terms and conditions are satisfied: (i) Borrower Grantor is in compliance with all terms and conditions of the Loan Documents and no default has occurred and is then continuing hereunder or under any of the other Loan Documents and the proposed Transferee agrees to continue to comply with and be bound by all provisions of the Loan Documents; (ii) Borrower Grantor gives Lender Beneficiary written notice of the terms of such prospective Assumption not less than forty-five (45) days before the date on which such Assumption is scheduled to take place and, concurrently therewith, gives Lender Beneficiary all such information concerning Transferee as Lender Beneficiary reasonably requests. Lender Beneficiary shall have the right to approve or disapprove the proposed Transferee. In determining whether to give or withhold its approval of the proposed Transferee, Lender Beneficiary shall consider Transferee's ’s experience in owning and operating a facility similar to the Property, Transferee's ’s entity structure, Transferee's ’s financial strength, the Transferee's ’s general business standing and Transferee's ’s relationship and experience with contractors, vendors, tenants, lenders Beneficiaries and other business entities; (iii) Borrower Grantor shall pay Lender Beneficiary (A) in connection with such proposed Assumption, all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' ’ fees incurred by Lender Beneficiary and any rating agency approval fees (whether such transfer is approved or rejected), plus (B) concurrently with the closing of such Assumption, a nonrefundable assumption fee in an amount equal to 1% of the then outstanding principal balance of the NoteNote (the “Assumption Fee”). Notwithstanding the foregoing, Beneficiary agrees to waive the first Assumption Fee, so long as the Transferee is the REIT or a newly formed entity that is owned and controlled by the REIT; (iv) Transferee executes and delivers such documents and agreements as Lender Beneficiary shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender Beneficiary may reasonably require, including, without limitation, hazard insurance endorsements or certificates and other similar materials as Lender Beneficiary may deem necessary at the time of the Assumption, all in form and substance satisfactory to LenderBeneficiary, including, without limitation, an endorsement or endorsements to Lender's Beneficiary’s loan title insurance policy insuring the lien of this MortgageDeed of Trust, extending the effective date of such policy to the date of execution and delivery of the assumption agreement referenced in this subparagraph 15(c)(iv), with no additional exceptions added to such policy, except for items consented to by Lender Beneficiary or permitted under this MortgageDeed of Trust, and insuring that fee simple title to the Property is vested in the Transferee; (v) Borrower Grantor executes and delivers to LenderBeneficiary, without any cost or expense to LenderBeneficiary, a release of LenderBeneficiary, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the other security documents through and including the date of the closing of the Assumption, which agreement shall be in form and substance satisfactory to Lender Beneficiary and shall be binding upon the Transferee; (vi) subject to the provisions of PARAGRAPH Paragraph 11 of the Note, such Assumption is not construed so as to relieve Borrower Grantor of any personal liability under the Note or any of the Loan Documents for any act or events occurring or obligations arising prior to or simultaneously with the closing of such Assumption (excluding payment of the principal amount of the Note and interest accrued thereon) and Borrower Grantor executes, without any cost or expense to LenderBeneficiary, such documents and agreements as Lender Beneficiary shall reasonably require to evidence and effectuate the ratification of such personal liability; (vii) Transferee shall furnish, if Transferee is a corporation, partnership or other entity, all appropriate papers evidencing Transferee's ’s capacity in good standing and the qualification of the signers to execute the assumption of the Obligations, which paper shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners, members or shareholders of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be) as Lender Beneficiary shall require, shall be single purpose entities, whose formation documents shall be approved by counsel to LenderBeneficiary. Transferee must comply with the provisions of PARAGRAPH Paragraph 17 hereof; (viii) Transferee shall furnish an opinion of counsel satisfactory to Lender Beneficiary and its counsel stating that (A) Transferee's ’s formation documents provide proof for the matters described in subparagraph (vi) above, (B) the assets of Transferee will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Transferee, in the event of a bankruptcy or insolvency of any such entity if required by any rating agency after the securitization of the Loan, (C) the assumption of the Obligations has been duly authorized, executed and delivered and the Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (D) Transferee and any entity which is a controlling stockholder, general partner or managing member of Transferee have been duly organized and are in good standing and in existence, and (E) with respect to such other matters as Lender Beneficiary or any applicable rating agency may request; and (ix) if the Loan has previously been securitized pursuant to PARAGRAPH Paragraph 44, Lender Beneficiary shall have received evidence in writing from the rating agencies to the effect the proposed transfer will not result in a downgrade, qualification, reduction or withdrawal of any rating initially assigned or to be assigned to any securities issued in connection with the Loan. Any such Assumption shall not be construed as to relieve any current Guarantors of their obligations under any guarantees or indemnity agreements executed in connection with the Note, provided that if Transferee or a party associated with Transferee approved by Lender Beneficiary in its sole discretion assumes the obligations of the current Guarantors under their guarantees or indemnity agreements and Transferee or such party associated with Transferee if applicable, executes, without any cost or expense to LenderBeneficiary, a new guarantee and/or indemnity agreement in form and substance satisfactory to LenderBeneficiary, then Lender Beneficiary shall release the current Guarantors from all obligations first arising under their guarantees or indemnity agreements after the closing of such Assumption. If the Transferee under thisthis Section 15(d) is the REIT, at such time as the REIT achieves a minimum net worth not less than $10,000,000 as determined by Beneficiary in its sole discretion, then the REIT shall be deemed an acceptable substitute guarantor for purposes of this section;

ONE-TIME ASSUMPTION. Notwithstanding the foregoing provisions of this PARAGRAPH Paragraph 15, Lender shall not withhold its consent to a sale of the entire Property and assumption of this Loan (hereinafter, an "“Assumption"”), provided that each of the following terms and conditions are satisfied: (i) Borrower is in compliance with all terms and conditions of the Loan Documents and no default has occurred and is then continuing hereunder or under any of the other Loan Documents and the proposed Transferee agrees to continue to comply with and be bound by all provisions of the Loan Documents; (ii) Borrower gives Lender written notice of the terms of such prospective Assumption not less than forty-five (45) days before the date on which such Assumption is scheduled to take place and, concurrently therewith, gives Lender all such information concerning Transferee as Lender reasonably requests. Lender shall have the right to approve or disapprove the proposed Transferee. In determining whether to give or withhold its approval of the proposed Transferee, Lender shall consider Transferee's ’s experience in owning and operating a facility similar to the Property, Transferee's ’s entity structure, Transferee's ’s financial strength, the Transferee's ’s general business standing and Transferee's ’s relationship and experience with contractors, vendors, tenants, lenders and other business entities; (iii) Borrower shall pay Lender (A) in connection with such proposed Assumption, all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' ’ fees incurred by Lender and any rating agency approval fees (whether such transfer is approved or rejected), plus (B) concurrently with the closing of such Assumption, a nonrefundable assumption fee in an amount equal to 1% of the then outstanding principal balance of the NoteNote (the “Assumption Fee”). Notwithstanding the foregoing, Lender agrees to waive the first Assumption Fee, so long as the Transferee is the REIT or a newly formed entity that is owned and controlled by the REIT; (iv) Transferee executes and delivers such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may reasonably require, including, without limitation, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Assumption, all in form and substance satisfactory to Lender, including, without limitation, an endorsement or endorsements to Lender's ’s loan title insurance policy insuring the lien of this Mortgage, extending the effective date of such policy to the date of execution and delivery of the assumption agreement referenced in this subparagraph 15(c)(iv), with no additional exceptions added to such policy, except for items consented to by Lender or permitted under this Mortgage, and insuring that fee simple title to the Property is vested in the Transferee; (v) Borrower executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the other security documents through and including the date of the closing of the Assumption, which agreement shall be in form and substance satisfactory to Lender and shall be binding upon the Transferee; (vi) subject to the provisions of PARAGRAPH Paragraph 11 of the Note, such Assumption is not construed so as to relieve Borrower of any personal liability under the Note or any of the Loan Documents for any act or events occurring or obligations arising prior to or simultaneously with the closing of such Assumption (excluding payment of the principal amount of the Note and interest accrued thereon) and Borrower executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of such personal liability; (vii) Transferee shall furnish, if Transferee is a corporation, partnership or other entity, all appropriate papers evidencing Transferee's ’s capacity in good standing and the qualification of the signers to execute the assumption of the Obligations, which paper shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners, members or shareholders of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be) as Lender shall require, shall be single purpose entities, whose formation documents shall be approved by counsel to Lender. Transferee must comply with the provisions of PARAGRAPH Paragraph 17 hereof; (viii) Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel stating that (A) Transferee's ’s formation documents provide proof for the matters described in subparagraph (vi) above, (B) the assets of Transferee will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Transferee, in the event of a bankruptcy or insolvency of any such entity if required by any rating agency after the securitization of the Loan, (C) the assumption of the Obligations has been duly authorized, executed and delivered and the Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (D) Transferee and any entity which is a controlling stockholder, general partner or managing member of Transferee have been duly organized and are in good standing and in existence, and (E) with respect to such other matters as Lender or any applicable rating agency may request; and (ix) if the Loan has previously been securitized pursuant to PARAGRAPH Paragraph 44, Lender shall have received evidence in writing from the rating agencies to the effect the proposed transfer will not result in a downgrade, qualification, reduction or withdrawal of any rating initially assigned or to be assigned to any securities issued in connection with the Loan. Any such Assumption shall not be construed as to relieve any current Guarantors of their obligations under any guarantees or indemnity agreements executed in connection with the Note, provided that if Transferee or a party associated with Transferee approved by Lender in its sole discretion assumes the obligations of the current Guarantors under their guarantees or indemnity agreements and Transferee or such party associated with Transferee if applicable, executes, without any cost or expense to Lender, a new guarantee and/or indemnity agreement in form and substance satisfactory to Lender, then Lender shall release the current Guarantors from all obligations first arising under their guarantees or indemnity agreements after the closing of such Assumption. If the Transferee under thisthis Section 15(d) is the REIT, at such time as the REIT achieves a minimum net worth not less than $10,000,000 as determined by Lender in its sole discretion, then the REIT shall be deemed an acceptable substitute guarantor for purposes of this section;