Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 4 contracts
Samples: Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange Clipper REIT (as defined below) (provided, that, the foregoing provisions of this clause clauses (a), (b) and (c) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a), (b) and/or (bc) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required transfers (it being acknowledged that with respect to transfers any transfer contemplated by clause (c) above, no such notice shall be required if (i) the transfer shall otherwise comply with the requirements of direct this Section 6.3 (ii) the transfer does not cause any Person (or indirect ownership interests affiliated Persons) to own more than a ten (10%) interest in Sponsor which do Borrower that did not result in a change in Control of Sponsorpreviously own said interest); (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) Daxxx Xxxxxxxxx, Sax Xxxxxxxx xnd Guarantor Family Entities shall, in the aggregate, own at least a 5145% (of which 15% may be owned by Moric Bistricer) direct or indirect equity ownership interest in Berkshire Equity LLC and Berkshire Equity LLC shall own a 100% direct ownership interest in each of Borrower and any SPE Component Entity; (II) the Clipper REIT shall (x) serve as the general partner of Clipper Realty L.P., a Delaware limited partnership (the “Clipper Guarantor”), (y) Control Borrower and any SPE Component Entity and (IIIz) control the day-to-day operation of the PropertyProperty and (III) the Clipper Guarantor and the Clipper REIT shall own at least a twenty five percent (25%) direct and/or indirect interest in the Borrower; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated (I) to the extent a Manager Trigger has occurred, Manager or a New Manager approved in accordance with the applicable terms and conditions hereofhereof or (II) to the extent that a Manager Trigger has not occurred, Borrower; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer; (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; (H) to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; (I) such transfers shall be permitted pursuant to the terms of the Property Documents; and (GJ) after giving effect to such transfertransfers, the Guarantor Control Condition shall continue to be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart Organizational Chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3. Notwithstanding anything to the contrary contained in this Agreement (including, without limitation, this Section 6.3), no transfer of any direct and/or indirect interest in Clipper Realty Inc., a Maryland corporation (the “Clipper REIT”) held by Daxxx Xxxxxxxxx, Sax Xxxxxxxx, members of the Bistricer Family Group and/or the Lexxxxxx Xamily Group (other than transfers of said interests to Guarantor Family Entities) shall be permitted until the Loan is indefeasibly paid in full in accordance with the terms hereof.”
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6foregoing, none of the following equity transfers shall be deemed Prohibited Equity Transfers (and each shall be permitted hereunder without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation the consent of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledgeMortgagee), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, thatno Event of Default shall have occurred and is continuing, the foregoing provisions of this clause assumption documentation (cif deemed necessary by Mortgagee) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply reasonably required by Mortgagee is executed (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, including without limitation, a re-affirmation by Guarantor), and Mortgagor pays all of Mortgagee’s reasonable out of pocket costs and expenses associated with Mortgagee’s review and documentation of the covenants contained herein relating Transfer:
(1) a Transfer by holders of direct interests in Mortgagor (each an “Interest Holder”) as of the date of the Transfer to ERISA matters)); another person or entity who is not an Interest Holder, provided, furtherhowever, thatthat (y) after taking into account any prior Transfers pursuant to this sentence, with respect whether to the transfers listed proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in clauses a change of Control (aas hereinafter defined) and/or of Mortgagor, and (bz) aboveMortgagor shall give Mortgagee notice of such Transfer together with copies of all instruments effecting such Transfer reasonably requested by Mortgagee, (A) Lender shall receive not less than thirty (30) days prior written notice after the date of such transfersTransfer;
(2) any Transfer, sale, assignment or issuance, from time to time, of any interests in Mortgagor held, directly or indirectly, by Industrial Income Trust Inc., a Maryland corporation (“IIT”), or Guarantor, provided, however, prior written notice that IIT and Guarantor shall not be required with respect continue to transfers Control (as defined in clause (ii) in the definition of direct Control) directly or indirect ownership indirectly, the Mortgagor on the date of such Transfer; or
(3) (x) any Transfer, sale, assignment, or issuance from time to time, of interests in Sponsor which do not result IIT or Guarantor, including, without limitation, by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of IIT or Guarantor, (y) the listing of the securities in IIT or Guarantor on a national securities exchange, or (z) the conversion of IIT or Guarantor into an “open end fund”; provided, however, that, to the extent that any Transfer under subsection (x) above, results in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of SponsorIIT or Guarantor, Guarantor or Affiliated Manager; (C) after giving effect to such transfersas applicable, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in then Mortgagor must satisfy each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein conditions relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive an assumption of the actual grant Loan by a new transferee pursuant to the second paragraph of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraphParagraph 30(b). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 2 contracts
Samples: Mortgage, Security Agreement, Financing Statement and Fixture Filing (Industrial Income Trust Inc.), Mortgage, Security Agreement, Financing Statement and Fixture Filing (Industrial Income Trust Inc.)
Permitted Equity Transfers. Notwithstanding anything to the restrictions contrary contained in this Article 68, the following equity transfers shall not be Prohibited Transfers and shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by (i) devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted PartyParty or (ii) voluntary act as part of an estate planning process, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party, (c) in addition to the transfers permitted by clause (b), any other transaction involving the direct and/or indirect equity interests in a Restricted Party (other than a pledge) that would fit within the definition of Prohibited Transfer (including, without limitation, a transaction of the type described in clauses (iv), (vi), (vii) or (cviii) of Section 8.2(b) hereof) constituting a transfer of less than 49% of the direct and/or indirect equity ownership of any Borrower, Guarantor, Sponsor any SPE Component Entity and/or Affiliated Manager and (d) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))exchange; provided, further, that, with respect to the transfers listed in clauses (a) and/or ), (b) or (c) above, each of the following are complied with in connection with any such transfer: (A) Lender shall receive not less than thirty five (305) days prior written notice of such transfersthereof, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor Sponsor or Affiliated Manager (provided, however, a “change in Control” of Sponsor or Affiliated Manager shall not be deemed to have occurred for the purposes of this subsection (B) if any one of the entities meeting the definition of “Sponsor” contained herein succeeds to the interest of the then current Sponsor and such successor Sponsor Controls the Affiliated Manager; ), (C) after giving effect to any such transferstransfer, Sponsor one of the entities meeting the definition of “Sponsor” contained herein shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower Borrower, Master Lessee (if the Master Lease Termination has not occurred) and any SPE Component Entity; , (II) Control Borrower Borrower, Master Lessee (if the Master Lease Termination has not occurred) and any SPE Component Entity and (III) control the day-to-day operation of the Property; , (D) after giving effect to any such transferstransfer, the Property (including, without limitation, the parking related activities at the Property) shall continue to be managed by Affiliated Manager and Parking Manager (as applicable) or a New Manager approved in accordance with the applicable terms and conditions hereof; Qualified Manager, (E) in the case of the transfer of any direct or indirect equity ownership interests in Borrower Borrower, Master Lessee (if the Master Lease Termination has not occurred) or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; Sections 4.2, 4.3 and 5.9 hereof shall continue to be complied with after giving effect to such transfers, (F) in the case of (1) the transfer of the management or parking management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer (in one or in a series of transactions) in excess of 49% (in the aggregate) of any equity ownership interests (I) directly in Borrower, Master Lessee (if the Master Lease Termination has not occurred) or in any SPE Component Entity, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower, Master Lessee (if the Master Lease Termination has not occurred) or in any SPE Component Entity, Lender shall receive a substantive non-consolidation opinion, which such opinion shall be provided by outside counsel acceptable to Lender and the Rating Agencies and shall otherwise be in form, scope and substance reasonably acceptable to Lender and acceptable to the Rating Agencies (such opinion, the “New Non-Consolidation Opinion”) addressing the relevant transfer, (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) not cause a Property Document Event and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (GH) after giving effect to any such transfer, the Guarantor Control Condition shall continue to be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 2 contracts
Samples: Deed of Trust and Security Agreement, Deed of Trust and Security Agreement (American Assets Trust, Inc.)
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6Section 6.1 hereof, the following equity transfers shall be permitted without Lender’s consent: :
(a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (cA) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange or (B) a Permitted REIT Transfer; provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); .
(ii) a transfer (but not a pledge) by devise or descent or by operation of law upon the death or declaration of incompetence of a Restricted Party or any member, partner or shareholder of a Restricted Party, or the transfer (but not the pledge) in one or a series of transactions of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party (provided, further, that, with respect the foregoing shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the transfers listed compliance with) the other covenants set forth herein and in clauses (a) and/or (b) abovethe other Loan Documents), so long as, in any case, each of the following conditions is satisfied:
(A) no Event of Default has occurred and is continuing beyond any applicable notice and/or cure periods, or would occur as a result of such transfer;
(B) Lender shall receive not less than thirty (30) days prior written notice of such transferstransfers (except in the case of a transfer occurring upon the death or declaration of incompetence of any Person, provided, however, prior in which case Lender shall receive written notice shall thereof not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; more than thirty (B30) days after such transfer);
(C) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; ;
(CD) after giving effect to such transfers, Sponsor one or more Sponsors shall (I1) own at least a 51% direct or indirect equity ownership interest in each of each Borrower and any SPE Component Entity; (II2) Control each Borrower and any SPE Component Entity and (III3) control the day-to-day operation of the Property; ;
(DE) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New replacement Manager approved in accordance with the applicable terms and conditions hereof; ;
(EF) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 Exhibit C hereof; ;
(FG) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question question, (I1) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II2) continue to comply with the covenants contained herein relating to ERISA matters;
(H) such transfers shall be permitted pursuant to the terms of the Property Documents;
(I) if after giving effect to any equity transfer set forth in Section 6.3(a)(ii), ten percent (10%) or more in the aggregate of the direct or indirect ownership interests in Borrower, any SPE Component Entity or any Guarantor that is not a natural person would be owned by a Person (together with its Affiliates) which did not own ten percent (10%) or more of the direct or indirect ownership interests in such Person on the Closing Date or as a result of other equity transfers previously made in accordance with the terms and provisions of this Agreement, then, as a condition to any such equity transfer being permitted hereunder, Borrower shall deliver Lender credit searches (in form, scope and substance and from a provider, in each case, reasonably acceptable to Lender) with respect to such equity transfer; and
(J) if after giving effect to any equity transfer set forth in Section 6.3(a)(ii), forty nine percent (49%) or more in the aggregate of the direct or indirect ownership interests in any Borrower, any SPE Component Entity or any Guarantor that is not a natural person would be owned by a Person (together with its Affiliates), other than Sponsor, which did not own forty nine percent (49%) or more of the direct or indirect ownership interests in such Borrower, any SPE Component Entity or such Guarantor, as applicable, on the Closing Date or as a result of other equity transfers previously made in accordance with the terms and provisions of this Agreement, then, as a condition to any such equity transfer being permitted hereunder, Borrower shall deliver to Lender (1) a Rating Agency Confirmation and (G2) if a Non-Consolidation Opinion has previously been delivered in connection with the Loan, a New Non-Consolidation Opinion.
(iii) the issuance or transfer (but not the pledge) in one or a series of transactions of ownership interests, including, without limitation, common or preferred stock and common or preferred partnership interests in Medalist Diversified REIT, Inc., a Maryland corporation (the “REIT”) or Medalist Diversified Holdings, L.P., a Delaware limited partnership (the “OP”) (provided, that, the foregoing shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents), so long as, in any case, each of the following conditions is satisfied:
(A) no Event of Default has occurred and is continuing, or would occur as a result of such transfer;
(B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager;
(C) after giving effect to such transfertransfers, the Guarantor REIT remains the general partner of the OP;
(D) after giving effect to such transfers, one or more Sponsors shall (1) Control Condition each Borrower and any SPE Component Entity and (2) control the day-to-day operation of the Property;
(E) after giving effect to such transfers, the Property shall continue to be managed by Manager or a replacement Manager approved in accordance with the applicable terms and conditions hereof;
(F) such transfers shall be satisfied. Notwithstanding conditioned upon Borrower’s ability to, after giving effect to the aboveequity transfer in question, a Sponsor Level Pledge (1) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (2) continue to comply with the covenants contained herein relating to ERISA matters;
(G) such transfers shall be permitted hereunder pursuant to the terms of the Property Documents;
(H) if after giving effect to any equity transfer set forth in Section 6.3(a)(iii), twenty percent (20%) or more in the aggregate of the direct or indirect ownership interests in any Borrower, any SPE Component Entity or any Guarantor that is not a natural person would be owned by a Person (together with its Affiliates) which did not own twenty percent (20%) or more of the direct or indirect ownership interests in such Person on the Closing Date or as a result of other equity transfers previously made in accordance with the terms and provisions of this Agreement, then, as a Sponsor Level Pledge may be effected without the consent or approval of condition to any such equity transfer being permitted hereunder, Borrower shall deliver Lender credit searches (in form, scope and substance and from a provider, in each case, reasonably acceptable to Lender) so long as with respect to such equity transfer at least thirty (30) days prior to the occurrence of such transfer; and
(I) if after giving effect to any transfers made equity transfer set forth in connection therewith Section 6.3(a)(ii), forty nine percent (exclusive 49%) or more in the aggregate of the actual grant direct or indirect ownership interests in any Borrower, any SPE Component Entity or any Guarantor that is not a natural person would be owned by a Person (together with its Affiliates), other than Sponsor, which did not own forty nine percent (49%) or more of the Sponsor Level Pledge) comply with all other applicable provisions hereof (includingdirect or indirect ownership interests in such Borrower, without limitation and any SPE Component Entity or such Guarantor, as applicable, on the foregoing Closing Date or as a result of other equity transfers previously made in accordance with the terms and provisions of this paragraphAgreement, then, as a condition to any such equity transfer being permitted hereunder, Borrower shall deliver to Lender (1) a Rating Agency Confirmation and (2) if a Non-Consolidation Opinion has previously been delivered in connection with the Loan, a New Non-Consolidation Opinion.
(J) Lender shall receive written notice of any such transfer not more than ten (10) Business Days after such transfer (provided that nothing in this clause (J) shall limit the requirements of clauses (H) and (I) above). .
(b) Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan Organizational Chart reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 2 contracts
Samples: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions anything contained in this Article 6Agreement or any of the other Loan Documents, the following equity transfers any Transfer of a direct or indirect Equity Interest in Guarantor, or Transfer of any non-controlling limited partnership interests in Borrower Member, shall be permitted without Lender’s consent: (a) and the same shall not constitute a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledgeProhibited Equity Transfer), in one without the consent of Administrative Agent and without the payment of any transfer fees or a series of transactions, other amounts (except as hereinafter provided); provided that all of the stock, partnership interests or membership interests following conditions precedent have been satisfied (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (A) Lender shall receive not less than thirty (30) days prior written notice Transfer satisfying all of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in conditions precedent being a change in Control of Sponsor; “Permitted Equity Transfer”): (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (Ci) after giving effect to such transfersTransfer, Sponsor no Change of Control shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entityoccur; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (Dii) after giving effect to such transfersTransfer, Guarantor shall continue to own at least 51% of the Property direct or indirect equity interests in Borrower Member and Borrower and Guarantor shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereofgeneral partner of Borrower Member; (Eiii) in the case none of the transfer representations or covenants of Sections 7.1(n), (w) and (x) or Section 8.15 shall be violated as a result of such Transfer; and (iv) if any transferee of any direct equity ownership interests interest subject to such Transfer, that did not own twenty-five percent (25%) (or such reduced percentage as may hereafter be required by Administrative Agent due to a change in Borrower internal policies or in any SPE Component Entityapplicable Requirements of Law) or more of the indirect interests in any Borrower, shall, following such transfers Transfer, own in excess of twenty-five percent (25%) (or such reduced percentage as may hereafter be required by Administrative Agent due to a change in internal policies or in any Applicable Law) or more of the indirect ownership interests of any Borrower, each such transferee shall satisfy the following conditions precedent to such Transfer: (A) each such transferee shall not have been convicted of any crime or be conditioned upon continued compliance with the relevant provisions subject of Article 5 hereofany ongoing criminal investigation; (FB) such transfers Transfer to each such transferee shall not violate The USA Patriot Act of 2001 (Public Law 107-56) and federal regulations issued with respect thereto or cause Administrative Agent or any Lender to be conditioned upon Borrower’s ability toin violation of the Patriot Act, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s requestwithout limitation, Borrower each such transferee shall deliver to Lender not be an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA mattersEmbargoed Person; and (GC) after giving effect each such transferee shall not have filed for bankruptcy (or other similar insolvency proceedings) within the ten (10) year period prior to such transferTransfer. A Permitted Equity Transfer shall not constitute Administrative Agent’s consent to any Change of Control or any change in management of the Property, except to the extent otherwise set forth in this Agreement. Borrower waives any defense to the Loans or the Loan Documents or the Hazardous Materials Indemnity Agreement based upon any Permitted Equity Transfer. In furtherance of the foregoing and not in limitation thereof, Borrower agrees that no Permitted Equity Transfer shall diminish or otherwise affect Borrower’s liability or obligations under the Loans, the Guarantor Control Condition shall be satisfied. Notwithstanding Loan Documents and the aboveHazardous Materials Indemnity Agreement to which it is a party, a Sponsor Level Pledge shall be permitted hereunder (or Guarantor’s liability under the Guaranty and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3Hazardous Materials Indemnity Agreement.
Appears in 2 contracts
Samples: Revolving Loan Agreement (RREEF Property Trust, Inc.), Revolving Loan Agreement (RREEF Property Trust, Inc.)
Permitted Equity Transfers. Notwithstanding any other provision of the restrictions contained in this Article 6Loan Documents, the following equity transfers shall be permitted without Lender’s consent: :
(a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (cA) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange or (B) a Permitted REIT Transfer; provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); . a transfer (but not a pledge) by devise or descent or by operation of law upon the death or declaration of incompetence of a Restricted Party or any member, partner or shareholder of a Restricted Party, or the transfer (but not the pledge) in one or a series of transactions of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party (provided, further, that, with respect the foregoing shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the transfers listed compliance with) the other covenants set forth herein and in clauses (a) the other Loan Documents), so long as, in any case, each of the following conditions is satisfied: no Event of Default has occurred and is continuing beyond any applicable notice and/or (b) abovecure periods, (A) or would occur as a result of such transfer; Lender shall receive not less than thirty (30) days prior written notice of such transferstransfers (except in the case of a transfer occurring upon the death or declaration of incompetence of any Person, provided, however, prior in which case Lender shall receive written notice shall thereof not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsormore than thirty (30) days after such transfer); (B) no such transfers shall result in a change in Control control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.;
Appears in 2 contracts
Samples: Change in Terms Agreement (Medalist Diversified REIT, Inc.), Change in Terms Agreement (Medalist Diversified REIT, Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause clauses (a), (b) and (c) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated (I) to the extent a Manager Trigger has occurred, Manager or a New Manager approved in accordance with the applicable terms and conditions hereofhereof or (II) to the extent that a Manager Trigger has not occurred, Borrower; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer; (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; (H) to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; (I) such transfers shall be permitted pursuant to the terms of the Property Documents; and (GJ) after giving effect to such transfertransfers, the Guarantor Control Condition shall continue to be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart Organizational Chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (ai) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted PartyParty (other than a transfer of the direct interests in Mortgage Borrower, Borrower, Mezzanine A Borrower, Mezzanine B Borrower or any Operating Lessee Pledgor), (bii) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party (other than a transfer of the direct interests in Mortgage Borrower, Borrower, Mezzanine A Borrower, Mezzanine B Borrower or any Operating Lessee Pledgor), (ciii) the sale, transfer Sale or Pledge or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares (iv) the pledge of common stock are listed on any direct or indirect interests in Borrower and any Applicable SPE Component Entity in connection with the New York Stock Exchange Mezzanine Loans and the exercise of any rights or another nationally recognized stock exchange remedies that any Mezzanine Lender may have under its respective Mezzanine Loan Documents or (v) the Sale or Pledge or issuance of limited partnership interests in Northstar Healthcare Income Operating Partnership, LP or an “operating partnership” whose general partner is Northstar Realty Finance Corp. and that acquired its interest in accordance with the provisions hereof (provided, that, the foregoing provisions of this clause clauses (ci), (ii), (iii), (iv) and (v) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply with (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (ai), (ii) and/or (bv) above (but not the transfers listed in clauses (iii) and/or (iv) above, including the transfers listed in clauses (i), (ii) and/or (v) above solely to the extent that they are also transfers pursuant to clauses (iii) and/or (iv) above)), (A) except with respect to the transfers listed in clause (i) and (v) above, Lender shall receive not less than thirty fifteen (3015) days prior written notice of such transfers, provided, however, prior written notice shall not be required transfers (and with respect to transfers the transfer listed in clause (i) above, Lender shall receive notice of direct or indirect ownership interests in Sponsor which do such transfer not result in a change in Control of Sponsorless than fifteen (15) days following Borrower’s knowledge thereof); (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Guarantor, each Borrower, each Mortgage Borrower, each Mezzanine A Borrower, each Mezzanine B Borrower and any SPE Component Entity; (II) Control Borrower and any each Applicable SPE Component Entity and (IIIII) control the day-to-day operation of the PropertyControl Guarantor, each Borrower, each Mezzanine A Borrower, each Mezzanine B Borrower, each Mortgage Borrower and each Applicable SPE Component Entity; (D) after giving effect to such transfers, the each Individual Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof to the extent required pursuant to the terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of any Individual Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) if after giving effect to such transfer more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any Applicable SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any Applicable SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing such transfer; (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (GH) after giving effect to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any Applicable SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge ; and (I) such transfers shall be permitted hereunder (and a Sponsor Level Pledge may be effected without pursuant to the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive terms of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Property Documents. Upon request from Lender, Borrower shall promptly provide (or cause to be provided to) Lender (y) a revised version of the organizational chart Organizational Chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3 and (z) credit searches (in form, scope and substance and from a provider, in each case, reasonably acceptable to Lender) with respect to any equity transfer consummated in accordance with this Section 6.3.
(b) Notwithstanding the restrictions contained in this Article 6, so long as no Event of Default has occurred and shall be continuing, a Public Company Exit shall be permitted and may be effectuated by the applicable Person provided that: (i) Lender receives thirty (30) days prior written notice with respect to such Public Company Exit, (ii) after giving effect to such Public Company Exit, each Individual Property shall continue to be managed by Manager or a New Manager approved in accordance with the applicable terms and conditions hereof to the extent required pursuant to the terms and conditions hereof, (iii) in the case of (1) the transfer of the management of any Individual Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) if after giving effect to such Public Company Exit more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any Applicable SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing such Public Company Exit; (iv) such Public Company Exit shall
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Permitted Equity Transfers. Notwithstanding the restrictions contained (a) A Transfer (but not a pledge or encumbrance) of a direct or indirect beneficial interest in this Article 6Borrower (other than Maryland Borrower), the following equity transfers Maryland Loan Guarantor or Master Lessee that is otherwise prohibited hereunder shall nevertheless be permitted without Lender’s consent: prior written consent if (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (Ai) Lender shall receive not less than receives thirty (30) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of such transfersDefault shall have occurred and be continuing, provided, however, prior written notice shall not be required with respect to transfers (iii) no more than forty-nine percent (49%) of the direct or indirect ownership interests in Sponsor which do Borrower is being Transferred (in the aggregate of all such Transfers), (iv) the transferee is not result in a change in Disqualified Transferee, (v) Guarantor retains Control of Sponsor; (B) no such transfers shall result in a change in Control of SponsorBorrower and Master Lessee and continues to own, Guarantor or Affiliated Manager; (C) after giving effect to such transfersdirectly and/or indirectly, Sponsor shall (I) own at least fifty-one percent (51%) of the equity interests in Borrower and Master Lessee, (vi) Master Lessee remains the master lessee under the Master Lease, (vii) Borrower retains control and management of the Property, (viii) Maryland Loan Guarantor retains a 51100% direct or indirect equity ownership interest in each of Maryland Borrower and (ix) if the Loan has been restructured to include any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation mezzanine component, such Transfer is not a Transfer of the Property; direct interests in Borrower (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer Maryland Property, the Maryland Loan Guarantor) which serve as collateral for such mezzanine loan.
(b) A Transfer of any more than forty-nine percent (49%) of the direct equity or indirect ownership interests in Borrower or (other than direct interests in any SPE Component EntityMaryland Borrower) and Maryland Loan Guarantor (in the aggregate of all such Transfers) shall be permitted only upon the satisfaction of the following conditions precedent: (i) Lender shall have received thirty (30) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) Lender shall have granted its prior written consent to such Transfer, such transfers consent not to be unreasonably withheld, conditioned or delayed, (iv) the proposed transferee shall be conditioned upon continued compliance a Qualified Transferee, (v) Borrower shall have reimbursed to Lender all of Lender’s costs and expenses incurred in connection with such Transfer, (vi) Borrower shall have delivered to Lender and, if a Securitization has occurred, the relevant provisions of Article 5 hereof; Rating Agencies, (FA) a Non-consolidation Opinion and (B) such transfers other documentation and Opinions of Counsel as shall be conditioned upon Borrower’s ability toreasonably required by Lender and/or, after giving effect if a Securitization has occurred, required by the Rating Agencies, in each case in a form reasonably satisfactory to Lender and, if the Loan is the subject of a Securitization, in a form satisfactory to the equity transfer Rating Agencies in question their sole discretion and (Ivii) remake the representations contained herein relating prior to ERISA matters (and, upon Lender’s requestsuch Transfer, Borrower shall deliver have obtained a Rating Agency Confirmation.
(c) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Lender an Officer’s Certificate containing such updated representations effective as or a Rating Agency Confirmation (but shall be subject to the remaining conditions of the date of the consummation of the applicable equity transferSection 8.4(a) and (IIb) continue to comply with the covenants contained herein relating to ERISA matters; as applicable other than 8(a)(v), 8(b)(iii), (iv) and (Gvii) after giving effect all of which shall not be required: a Transfer (but not a pledge or encumbrance) of any direct or indirect interests in Guarantor, Master Lessee, Maryland Loan Guarantor or Borrower (other than direct interests in Maryland Borrower), provided that subsequent to any such transferTransfer, more than fifty-one percent (51%) percent of Borrower, Maryland Loan Guarantor and Master Lessee is directly or indirectly owned by one or more investment funds, limited liability companies, limited partnerships or general partnerships with combined committed capital of at least $1,000,000,000 where one or more Permitted Fund Managers acts as the Guarantor Control Condition shall be satisfied. Notwithstanding the abovegeneral partners, a Sponsor Level Pledge shall be permitted hereunder managing members or fund managers and at least fifty-one percent (and a Sponsor Level Pledge may be effected without the consent or approval of Lender51%) so long as any transfers made in connection therewith (exclusive of the actual grant equity interests in each of the Sponsor Level Pledge) comply with all other applicable provisions hereof (includingsuch Permitted Fund Managers are owned, without limitation and as applicabledirectly or indirectly, the foregoing provisions by Guarantor, Cerberus Capital Management, L.P. or a wholly owned subsidiary of this paragraph). Upon request from LenderGuarantor or Cerberus Capital Management, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.L.P.
Appears in 2 contracts
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, Guarantor shall own at least a 16.5% direct or indirect equity ownership interest in Borrower; (E) after giving effect to such transfers, and in the event Borrower has entered into a Management Agreement, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (EF) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (FG) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer; and (H) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted PartyParty (provided that Lender shall receive written notice of such transfer within thirty (30) days following such transfer), (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (provided that Lender shall receive not less than thirty (30) days prior written notice of such transfer), (c) the sale, transfer or issuance of shares of common stock limited partnership interests in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange Clipper Realty L.P. (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters) and provided that Lender shall receive written notice of any transfer resulting in a transferee acquiring in one or a series of transfers 20% or more of the limited partnership interests in Clipper Realty L.P. within thirty (30) days following such transfer), (d) the sale, transfer or issuance of shares of common stock of Clipper Realty Inc. (provided, that, the foregoing provisions of this clause (d) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters) and provided that Lender shall receive written notice of any transfer resulting in a transferee acquiring in one or a series of transfers 20% or more of the limited partnership interests in Clipper Realty Inc. within thirty (30) days following such transfer); or (e) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided the shares of common stock of such Restricted Party are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (e) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, that with respect to the transfers listed in clauses (a), (b), (c) and/or (bd) above, (A) Lender Clipper Realty Inc. shall receive not less than thirty (30) days prior written notice continue to be the general partner of such transfersClipper Realty L.P., provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of SponsorClipper Realty Inc., Guarantor Clipper Realty L.P., Sponsor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, Clipper Realty Inc. shall own at least a 16.5% direct or indirect equity ownership interest in Borrower; (E) after giving effect to such transfers, and in the event Borrower has entered into a Management Agreement, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (EF) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (FG) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer; and (H) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.”. EXECUTION COPY
Appears in 2 contracts
Samples: Consent Agreement (Clipper Realty Inc.), Consent Agreement (Clipper Realty Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) ), or the creation or issuance of new stock, partnership or membership interests, in a Restricted Party (as the case may be) or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers or creation or issuance of interests listed in clauses (a) and/or (b) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, transfers or creation or issuance of interests; provided, however, prior written notice shall not be required with respect to any transfers or creation or issuance of direct or indirect ownership interests in Sponsor which do or the REIT occurring during the continuance of a REIT Public Offering Period, the requirements of this subsection (A) shall not result in a change in Control apply to any such transfers or creation or issuance of Sponsorinterests; (B) no such transfers or creation or issuance of interests shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; provided, however, such a transfer may result in a change of Control of Sponsor and Guarantor only (but not any Affiliated Manager) if a Qualified Transferee Controls Sponsor and Guarantor after giving effect to such transfer or creation or issuance of interests; (C) after giving effect to such transferstransfers or creation or issuance of interests and at all times that the Loan is outstanding, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the each Individual Property; (D) after giving effect to such transferstransfers or creation or issuance of interests, the each Individual Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer or creation or issuance of interest of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of the Property (or any portion thereof) to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer or creation or issuance of interest of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity, or (III) results in any Person and its Affiliates owning 49% or more of the outstanding interests in a Restricted Party such transfers or creation or issuance of interests shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer; provided, however, with respect to any transfers or creation or issuance of interests in Sponsor or the REIT occurring during the continuance of a REIT Public Offering Period, the requirements of this subsection (F) shall not apply to any such transfers or creation or issuance of interests; and (G) such transfers or creation or issuance of interests shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s written request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfertransfer or creation or issuance of interest) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon written request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer or creation or issuance of interests consummated in accordance with this Section 6.3. Notwithstanding anything to the contrary contained in this Loan Agreement, at all times during of the term of the Loan (x) no change in Control of Sponsor, Guarantor or Affiliated Manager shall occur, provided, however, a change in Control of Sponsor and Guarantor only (but not any Affiliated Manager) may occur if a Qualified Transferee assumes Control of Sponsor and Guarantor and (y) Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, any SPE Component Entity and each Individual Property; (II) Control each Borrower and any SPE Component Entity and (III) Control the day-to-day operation of the each Individual Property.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Trust III, Inc.)
Permitted Equity Transfers. (a) A Transfer of an ownership interest in Mezzanine Borrower, or any Junior Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a Rating Agency Confirmation if all of the following conditions are satisfied with respect to such Transfer: (i) Mezzanine Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) none of the direct ownership interests in any of Mortgage Borrower or any Senior Mezzanine Borrower is being Transferred, (iv) no more than forty-nine percent (49%) of the ownership interests in Mezzanine Borrower or any Junior Mezzanine Borrower is being Transferred (in the aggregate of all such Transfers), (v) the transferee is not a Disqualified Transferee, (vi) the Principal Control Persons collectively retain Control of Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower, and any Junior Mezzanine Borrower, and (vii) the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower, and any Junior Mezzanine Borrower.
(b) Notwithstanding anything herein to the restrictions contained in this Article 6contrary, the following equity transfers Transfers shall be permitted without Lender’s consent: not require the prior written consent of or, except as otherwise required in clause (ay) below, notice to Mezzanine Lender or a Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the Xxxxxxxx Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the Xxxxxxxx Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Mezzanine Lender shall receive prior written notice:
(i) a transfer Transfer of (but not A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, and (B) any interests in the parent entities of such owners;
(ii) a pledgeTransfer of equity interests in any Guarantor, Sponsor or Master Lessee in conjunction with or after an initial public offering of shares, provided that from and after the consummation of such initial public offering, no Person or group other than the Principal Control Persons and Principal Investors (A) by devise shall have acquired beneficial ownership, directly or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactionsindirectly, of equity interests in Master Lessee representing more than twenty-five percent (25%) of the stockvoting power and economic interest in Master Lessee where such ownership represents a greater amount of the voting power or economic interest in Master Lessee than that which is then owned by the Principal Control Persons and Principal Investors in aggregate, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (cB) shall have obtained the power (whether or not be deemed exercised) to waive, qualify or otherwise limit Borrower’s obligation to comply elect a majority of the members of the board of directors (or to cause the compliance withsimilar governing body) the other covenants set forth herein and of Master Lessee;
(iii) Transfers of direct or indirect interests in the other Loan Documents Guarantors (including, without limitation, any combination of one or more Guarantors or a Guarantor with Sponsor), and the covenants contained herein relating pledge or grant of security interests, as permitted under the terms of the organizational documents for each of the Guarantors; and
(iv) the pledge, hypothecation, encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee to ERISA mattersan Approved Bank as security for the Revolving/Term Credit Facility (the “Revolving/Term Credit Facility Lien”), provided that the Revolving/Term Credit Facility Lien shall not be foreclosed upon unless (A) the ownership of such direct interest in Master Lessee following such foreclosure shall be held by an Approved Bank or a Qualified Transferee and comply with all Gaming Laws and (B) such foreclosure shall not create or cause a Default or Event of Default hereunder (provided that the occurrence of such foreclosure, so long as clause (A) is complied with, shall not of itself constitute a Default or Event of Default); provided. For purposes solely of this Section 8.5(b)(iv), further, that, with respect to the transfers listed term “Qualified Transferee” shall have the meaning set forth in clauses (a) and/or Section 1.1 except that the “$2 Billion” figure in clause (b) aboveof the definition in Section 1.1 is replaced with “$1 Billion.” Notwithstanding the foregoing, (A) Lender Mezzanine Borrower shall receive not less than thirty (30) days prior written notice of such transfersnot, provided, however, prior written notice and shall not be required with respect to transfers of permit or suffer any person to, pledge, hypothecate, encumber or grant a security interest in or lien on any direct or, except as set forth in this Section 8.5, indirect interest in Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsorany SPE Entities, any Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3Sponsor.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: consent (aeach, a “Permitted Equity Transfer”): any transfer, directly as a result of the death of a natural person, of stock, membership interests, partnership interests, beneficial interests or other ownership interests previously held by the decedent in question to the Person or Persons lawfully entitled thereto and (b) any transfer, directly as a result of the legal incapacity of a natural person, of stock, membership interests, partnership interests, beneficial interests or other ownership interests previously held by such natural person to the Person or Persons lawfully entitled thereto.
(b) Notwithstanding Section 6.2, Lender shall not withhold its consent to a transfer of the entire Property or all of the outstanding ownership interests in Borrower in a single transaction to one newly-formed Single Purpose Entity which shall be a wholly-owned subsidiary of IREIT (“Permitted Affiliate Transferee”) which shall be approved by Lender in its reasonable discretion (“Permitted Affiliate Transfer”), provided (1) no Event of Default shall have occurred and be continuing, (2) the creditworthiness of IREIT, as applicable, has not deteriorated, in the sole discretion of Lender, from the Closing Date to the date of the proposed transfer, (3) Borrower shall have paid all reasonable and customary third party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such transfer (but not any assumption or processing fee), and (4) a pledgeNew Non-Consolidation Opinion shall be delivered to Lender with respect to such transfer.
(c) Notwithstanding Section 6.2, Lender shall not withhold its consent to a transfer of all of the outstanding ownership interests in Borrower in a single transaction to an Identified Affiliate, provided that Lender receives thirty (30) days’ prior written notice of such transfer and further provided that the following additional requirements are satisfied:
(i) no Event of Default shall have occurred and be continuing and no Default or Event of Default shall otherwise occur as a result of such transfer;
(ii) the Identified Affiliate shall, as of the date of such transfer, have an aggregate net worth and liquidity not worse than its net worth and liquidity as of the date hereof (provided, however, that with respect to IREIT only, IREIT shall be required to have an aggregate net worth and liquidity of at least $100,000,000.00) or an aggregate net worth and liquidity otherwise reasonably acceptable to Lender;
(iii) the Identified Affiliate and all other entities which may be owned or Controlled directly or indirectly by devise the Identified Affiliate (“Identified Affiliate Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or descent involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed transfer;
(iv) there shall be no material litigation or regulatory action pending or threatened against the Identified Affiliate or Identified Affiliate Related Entities which is not reasonably acceptable to Lender and, if requested by operation Lender, Borrower shall deliver, prior to such transfer and at Borrower’s sole cost and expense, customary searches (credit, judgment, lien, bankruptcy, etc.) reasonably acceptable to Lender with respect to the Identified Affiliate and any of law the Identified Affiliate Related Entities that will own twenty percent (20%) or more of the direct or indirect interests in Borrower immediately following such transfer;
(v) the Property shall continue to be managed by Manager or be managed by a Qualified Manager pursuant to a Replacement Management Agreement;
(vi) if required by Lender, if such transfer shall result in the Permitted Affiliate Transferee acquiring a fifty-one percent (51%) or greater interest in Borrower, Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed transfer will not cause a downgrading, withdrawal, reduction or qualification of the ratings in effect immediately prior to such transfer for the Securities, or any class thereof, issued in connection with a Securitization which are then outstanding;
(vii) if required by Lender, a New Non-Consolidation Opinion shall be delivered to Lender with respect to such transfer;
(viii) upon the death Permitted Affiliate Transferee acquiring all of the outstanding ownership interests in Borrower, the Identified Affiliate, at its sole cost and expense, shall deliver opinions regarding existence, authority and enforceability, which opinions may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives with respect to the proposed transaction;
(ix) the Identified Affiliate shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably acceptable to Lender, and (B) all certificates, agreements and covenants reasonably required by Lender, which shall include an Officer’s Certificate regarding existence, authority and enforceability with respect to the proposed transaction;
(x) upon the Permitted Affiliate Transferee acquiring all of the outstanding ownership interests in Borrower, prior to any release of Guarantor, (i) the Identified Affiliate shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or shall have executed a Restricted Party replacement guaranty and environmental indemnity reasonably satisfactory to Lender and (ii) the Identified Affiliate, at its sole cost and expense, shall have delivered opinions regarding existence, authority and enforceability, which opinions may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives with respect to the proposed transaction;
(xi) Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such transfer and the current fee being assessed by such Servicer to effect such transfer, and all expenses of the Rating Agencies (if any) pursuant to clause (vi) above; and
(xii) prior to acquiring Guarantor’s ownership interest in Borrower, the Permitted Affiliate Transferee shall have acquired all of the ownership interests in Borrower not owned by Guarantor.
(d) Notwithstanding Section 6.2, Lender’s consent shall not be required with respect to the merger of IREIT with any other Identified Affiliate; provided that (i) Lender shall receive not less than thirty (30) days prior written notice of any such proposed merger, (ii) no Event of Default shall have occurred and be continuing, (iii) the net worth of the entity surviving such merger shall equal or exceed the net worth of IREIT immediately prior to such merger, (iv) if requested by Lender, Borrower shall deliver, prior to such transfer and at Borrower’s sole cost and expense, customary searches (credit, judgment, lien, bankruptcy, etc.) reasonably acceptable to Lender with respect to such Identified Affiliate, and (v) immediately following such merger, the entity surviving the merger shall be publicly registered with the Securities and Exchange Commission.
(e) Notwithstanding Section 6.2, Lender’s consent shall not be required in connection with the acquisition by IREIT of any entity whether by merger, stock purchase, asset purchase or any member, partner or shareholder other manner; provided that: (i) Lender shall receive not less than thirty (30) days prior written notice of a Restricted Partyany such proposed transaction, (bii) no Event of Default shall have occurred and be continuing, (iii) IREIT is the surviving entity following such a transaction, (iv) if requested by Lender, Borrower shall deliver, prior to such transfer and at Borrower’s sole cost and expense, customary searches (credit, judgment, lien, bankruptcy, etc.) reasonably acceptable to Lender with respect to such acquired entity, and (v) the transfer net worth of IREIT after the transaction shall equal or issuance exceed the net worth of IREIT immediately prior to such a transaction.
(but f) Section 6.2, Lender’s consent shall not the pledge), be required in connection with one or a series of transactionstransfers, of up to forty-nine percent (49%) of the stock, limited partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))Party; provided, furtherhowever, thatno such transfer shall result in the change of Control in such Restricted Party, with respect and as a condition to the transfers listed in clauses (a) and/or (b) aboveeach such transfer, (Ax) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity proposed transfer and (IIIy) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed if requested by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide deliver, prior to such transfer and at Borrower’s sole cost and expense, customary searches (credit, judgment, lien, bankruptcy, etc.) reasonably acceptable to Lender a revised version with respect to any such transferee that will own twenty percent (20%) or more of the organizational chart delivered direct or indirect interests in Borrower immediately following such transfer. In addition, at all times, IREIT must continue to Lender (i) Control the applicable Restricted Party, and (ii) own, directly or indirectly, not less than fifty-one percent (51%) of the legal and beneficial interest in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3applicable Restricted Party.
Appears in 1 contract
Samples: Loan Agreement (Inland Real Estate Income Trust, Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consentconsent and without the payment of any fee (each, a “Permitted Equity Transfer”) provided no Event of Default is continuing at the time of such Permitted Equity Transfer: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or any member, partner or shareholder of a Restricted Party for estate planning purposes, (c) the sale, transfer Sale or issuance Pledge in the ordinary course of business of shares of common stock in -63- any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange exchange, (d) the sale, transfer or issuance of stock or other equity interest in a Restricted Party or any member, partner or shareholder of a Restricted Party to third party investors through licensed U.S. broker-dealers in accordance with Applicable Law (provided, that, the foregoing provisions of this clause clauses (c) and (d) shall not be deemed to waive, qualify or otherwise limit such Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); and (e) the transfer of all or substantially all of the stock in GRT in connection with the purchase thereof by a Qualified Equity Holder provided, further, that, with respect to the transfers listed in clauses (a) and/or ), (b) and or (e) above, (A) (1) Lender shall receive written notice of any transfers pursuant to clause (a) above within ten (10) Business Days of such transfer and (2) Lender shall receive not less than thirty (30) days prior written notice of such transferstransfers in connection with any transfer pursuant to clause (b) above, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transferstransfers (1) no more than forty-nine percent (49%), Sponsor shall (I) own at least in the aggregate, in one or a 51% series of transfers of the direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control either Borrower and any SPE Component Entity has been transferred is and (III2) control there shall be no change in Control of either Borrower, any SPE Component Entity or the day-to-day operation of the Property; Property from that which exists on the date hereof, (DC) after giving effect to such transfers, the Property shall continue to be managed by an Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (ED) in the case of the transfer of any direct equity ownership interests in either Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; , (E) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any direct or indirect equity ownership interests in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in either Borrower or in any SPE Component Entity that did not own the same on the date hereof or at the time of the delivery of any New Non-Consolidation Opinion prior to such transfer, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, (F) such transfers shall be conditioned upon either Borrower’s ability to, after giving effect to the equity transfer in question (I1) remake the representations contained herein relating to ERISA ERISA, OFAC and Patriot Act matters (and, upon Lender’s request, each Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer and (y) Patriot Act searches, bankruptcy searches, criminal background searches and such other searches which are customarily obtained by commercial mortgage lenders or required by applicable laws, rules and regulations applicable to Lender, acceptable to Lender, for any Person owning, directly or indirectly, twenty percent (20%) or more of the interests in the each Borrower as a result of such transfer) and (II2) continue to comply with the covenants contained herein relating to ERISA matters; OFAC and Patriot Act matters and (G) after giving effect to such transfer, transfers are permitted under the Guarantor Control Condition shall be satisfied. Notwithstanding Ground Lease and the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Redevelopment Documents. Upon request from Lender, Borrower Borrowers shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, provided no Event of Default is then continuing, the following equity transfers shall be permitted without Lender’s consent: :
(a) (I) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, Party or (II) a transfer (but not a pledge) of direct or indirect interests in Borrower by the then existing owners of such interests (x) to a Family Member of such owner or (y) to trusts formed for the benefit of such owner or a Family Member of such owner for estate planning purpose;
(b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or Party;
(c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters));
(d) a Permitted Parent Pledge;
(e) the transfer (but not a pledge), sale or issuance of operating partnership units in CBL & Associates Limited Partnership; or
(f) a Qualifying Merger of Sponsor; provided, further, that, with respect to the transfers listed in clauses (a), (b), (d) and/or (be) above, ,
(A) Lender shall receive not less than thirty ten (3010) days Business Days prior written notice of such transfers, transfers (provided, however, with respect to transfers listed in clause (e) above, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; required), (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor shall (I) Sponsor shall own at least a 51% fifty percent (50%) direct or indirect equity ownership interest in Operating Partnership, (II) Operating Partnership shall own at least a fifty percent (50%) direct or indirect equity interest in Borrower and any SPE Component Entity; (III) Sponsor shall Control Operating Partnership, Borrower and any SPE Component Entity (provided, however, with respect to transfers listed in clause (b) above, Sponsor and/or a Qualified Equityholder which owns fifty percent (50%) direct or indirect equity interest in each of Borrower and any SPE Component Entity; (II) , may Control Borrower and any SPE Component Entity Entity); and (IIIIV) Sponsor shall control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (E) such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof, (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any direct or indirect equity ownership interests in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with delivery to Lender of a New Non-Consolidation Opinion addressing such transfer (Xxxxxx’s approval of any New Non-Consolidation Opinion not to be unreasonably withheld or delayed provided it is substantially the relevant provisions of Article 5 hereof; form off the Non-Consolidation Opinion), (FG) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA ERISA, OFAC and Patriot Act matters (and, upon LenderXxxxxx’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA OFAC and Patriot Act matters; , and (GH) after giving effect to such transfer, the Guarantor Control Condition transfers shall be satisfied. Notwithstanding the above, not cause a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Property Document Event. Upon request from LenderXxxxxx, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Samples: Loan Agreement
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: consent (each, a “Permitted Equity Transfer”):
(a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, Party or (b) any transfer, directly as a result of the transfer or issuance (but not the pledge), in one or legal incapacity of a series of transactionsnatural person, of the stock, membership interests, partnership interests or membership other ownership interests (as previously held by such natural person to the case may be) in a Restricted Party Person or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))Persons lawfully entitled thereto; provided, further, that, with respect only to the transfers listed in clauses (a) and/or (b) above, (A) Lender shall receive not less than written notice of any transfers within thirty (30) days prior written notice of such transferstransfer, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of SponsorGuarantor, Guarantor Master Lessee or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor Guarantor shall (I) own at least a fifty-one percent (51% %) direct or indirect equity ownership interest in each of Borrower Borrower, Master Lessee and any SPE Component Entity; (II) Control Borrower Borrower, Master Lessee and any SPE Component Entity Entity; and (III) control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; hereof and such transfers shall be conditioned upon continued compliance with the relevant provisions of the Franchise Agreement, (E) in the case of the transfer of any direct equity ownership interests in Borrower Borrower, Master Lessee or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; , (F) intentionally omitted, (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question question, (I) remake the representations contained herein relating to ERISA ERISA, OFAC and Patriot Act matters (and, upon Lender’s request, Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer and (y) searches, acceptable to Lender, for any Person owning, directly or indirectly, 20% or more of the interests in the Borrower as a result of such transfer) and (II) continue to comply with the covenants contained herein relating to ERISA, OFAC and Patriot Act matters;
(II) Lender’s consent shall not be required in connection with one (1) or a series of equity transfers of up to forty-nine percent (49%) in the aggregate of the direct or indirect ownership interests in any Restricted Party provided that (a) no Event of Default shall have occurred and remain uncured or would occur as a result of such transfer, (b) such transfer shall not (i) cause the transferee (together with its Affiliates) to acquire Control of any Restricted Party unless such transferee is Guarantor, (ii) result in any Restricted Party that is as of the Closing Date controlled by Guarantor no longer being controlled by Guarantor, or (iii) cause the transferee (together with its Affiliates) to increase its direct or indirect interest in any Restricted Party to an amount which exceeds forty-nine percent (49%) in the aggregate, unless such transferee owned more than forty-nine percent (49%) of the direct or indirect ownership interests in such Restricted Party on the Closing Date or as a result of a transfer previously made in accordance with the terms and provisions of this Agreement, (c) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof and such transfers shall be conditioned upon continued compliance with the relevant provisions of the Franchise Agreement, (d) after giving effect to such Transfer, Guarantor shall continue to own, directly or indirectly, at least fifty-one percent (51%) of all legal, beneficial and economic interests in each of Borrower, Master Lessee and any SPE Component Entity and continue to control the day-to-day operation of the Property, (e) if, immediately following such Transfer, the transferee owns twenty percent (20%) or more of the direct or indirect ownership interests in Borrower or Master Lessee then, to the extent such transferee did not own twenty percent (20%) or more of the direct or indirect ownership interests in Borrower or Master Lessee on the Closing Date, Borrower shall deliver, or cause to be delivered, at Borrower’s sole cost and expense, such searches (including credit, negative news, OFAC, litigation, judgment, lien and bankruptcy searches) as Lender may reasonably require with respect to such transferee and its Controlling Persons, the results of which must be reasonably acceptable to Lender (unless such transferee and Controlling Persons were previously the subject of searches by Lender which were reasonably acceptable to Lender, in which case Borrower’s obligation to deliver or cause the delivery of such searches under this Section 6.3(II) shall be satisfied to the extent reasonably acceptable updates to such searches are delivered to Lender), and such transferee and its Controlling Persons shall otherwise satisfy Lender’s then current applicable underwriting criteria and requirements, (f) such transfer shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question, (i) remake the representations contained herein relating to ERISA, OFAC and Patriot Act matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (IIii) continue to comply with the covenants contained herein relating to ERISA OFAC and Patriot Act matters; , (g) Borrower shall give Lender notice of such transfer together with copies of all instruments effecting such transfer (or final drafts thereof with signed copies to follow upon the effect date of such transfer) and the organizational documents of the transferee and its constituent parties reasonably required by Lender not less than thirty (30) days prior to the date of such transfer, (h) the legal and financial structure of Borrower, Master Lessee, any SPE Component Entity and their respective stockholders, members or partners, as applicable, and the single purpose nature and bankruptcy remoteness of Borrower, Master Lessee and their respective stockholders, members or partners, as applicable, after such transfer, shall satisfy Lender’s then current applicable underwriting criteria and requirements (including, without limitation, the relevant provisions of Article 5 hereof), and (Gi) such transfers are permitted under the Franchise Agreement. Notwithstanding anything in this Section 6.3(II) to the contrary, and without limiting any of the foregoing requirements of this Section 6.3(II), if after giving effect to any such transfer, more than forty-nine percent (49%) in the Guarantor Control Condition shall aggregate of direct or indirect ownership interests in any Restricted Party are owned by any Person (together with its Affiliates) that owned less than forty-nine percent (49%) of the direct or indirect ownership interests in such Restricted Party as of the Closing Date or as a result of a transfer previously made in accordance with the terms and provisions of this Agreement, then Borrower shall, prior to the effective date of any such Transfer, deliver (or cause to be satisfied. Notwithstanding delivered) to Lender a written confirmation from the aboveapplicable Rating Agencies that such change in ownership will not cause a downgrade, withdrawal or qualification of the then current rating of the Securities or any class thereof; and
(III) The sale, issuance, conveyance, transfer, disposition, alienation, hypothecation, pledge or encumbering of all or any portion of the direct or indirect ownership interests in Mxxxx REIT (each a Sponsor Level Pledge “Permitted REIT Transfer”) shall be permitted hereunder at any and all times without (and a Sponsor Level Pledge may be effected without 1) Lender’s consent, (2) notice to Lender, or (3) the consent payment of any fee, premium, penalty or approval other payment to Lender other than payment of Lender’s actual out-of-pocket expenses, if any, provided, however, that upon completion of such Permitted REIT Transfer (a) so long as except with the Lender’s prior written consent, Mxxxx REIT is a Reporting Company, (b) there is no change of Control of Borrower, Master Lessee, any transfers made in connection therewith SPE Component Entity or Mxxxx REIT, (exclusive c) no Person together with such Person’s Affiliates, other than Sponsor and Sponsor’s Affiliates, owns more than forty-nine percent (49%) of the actual grant direct or indirect ownership interests in Mxxxx REIT, (d) Mxxxx REIT continues to own, directly or indirectly, one hundred percent (100%) of the Sponsor Level Pledgeownership interests in Borrower and Master Lessee, and (e) comply with all other applicable provisions hereof (includingBorrower provides to Lender searches, without limitation and acceptable to Lender, for any Person owning, directly or indirectly, 20% or more of the interests in Borrower as applicable, the foregoing provisions a result of this paragraph)such transfer. Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6foregoing or any other provision hereunder to the contrary, the following equity or property transfers shall be permitted and shall not be deemed Prohibited Equity Transfers (and each shall be permitted hereunder without the consent of Lender or the payment of any assumption fee), provided, (x) any of the applicable conditions set forth in this Section 15.1(c)(ii) are complied with by Borrower, (y) Borrower pays all of Lender’s consent: reasonable out of pocket costs and expenses in connection therewith and (az) a transfer (but not a pledge) by devise or descent or by operation of law upon in the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) event the transfer of any direct or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock indirect equity ownership in any Restricted Party that is a publicly traded entity, provided such shares results in any Person and its Affiliates owning in excess of common stock are listed on forty-nine percent (49%) of the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component EntityParty, such transfers transfers, if otherwise permitted hereunder, shall also be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver delivery to Lender of a new Non-Consolidation Opinion addressing such transfer:
(A) a sale, transfer or assignment (each, a “Transfer”) by holders of direct or indirect interests in Borrower (each an Officer’s Certificate containing such updated representations effective “Interest Holder”) as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof Disbursement Date (including, without limitation limitation, those interests held, directly or indirectly, by Dividend Capital Total Realty Trust Inc. (“TRT”) or Dividend Capital Total Realty Operating Partnership LP (“TROP”)) to another person or entity who is not an Interest Holder, provided, however, that (i) after taking into account any prior Transfers pursuant to this sentence, whether to the proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in a change of Control (as hereinafter defined) of Borrower or the day to day operations of the Property, (ii) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer reasonably requested by Lender, not less than thirty (30) days after the date of such Transfer; and (iii) no Default shall have occurred and is continuing;
(B) any Transfer, sale, assignment or issuance, from time to time, of (i) any securities in TRT, or (ii) any operating partnership units in TROP, provided, however, that TRT and TROP shall continue to (x) Control (as defined in clause (ii) in the definition of Control) directly or indirectly, the Borrower and the day to day operations of the Property on the date of such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Borrower;
(i) any Transfer, sale, assignment, or issuance from time to time, of the shares of stock or assets in TRT or TROP, (ii) any Transfer by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of TRT or TROP, (iii) the listing of the securities in TRT or TROP on a national securities exchange, (iv) the conversion of TRT or TROP, or any subsidiary thereof, into an “open end fund”, or (v) the transfer of any Property from Borrower to an affiliate of Borrower that is owned and controlled in substantially the same manner as Borrower is owned and controlled on the Disbursement Date and with the equivalent or better financial condition than that of Borrower (“Affiliate Transferee”) provided that (x) the organizational documents of the Affiliate Transferee are substantially similar to the organizational documents of Borrower and (y) the Affiliate Transferee executes assumption documentation reasonably required by Lender (it being understood and agreed that no assumption fee shall be payable in connection with any such assumption); provided, however, that, to the extent that any Transfer under subsections (i) or (ii) above, results in a change in Control of TRT or TROP, as applicable, the foregoing provisions of this paragraph). Upon request from Lender, then Borrower shall promptly provide Lender a revised version must satisfy each of the organizational chart delivered applicable conditions relating to Lender in connection with an assumption of the Loan reflecting by a new transferee pursuant to the applicable section within the Loan Agreement;
(D) subject to clause (C) above, a sale, issuance or Transfer of shares or other securities of TRT or any equity of its affiliates, which are listed on any national securities exchange;
(1) the closing of the Mezzanine Loan and the execution and delivery of all of the Mezzanine Loan Documents and the performance of all of the obligations thereunder by Mezzanine Borrower and any other parties thereto and (2) foreclosure (or deed in lieu of foreclosure) by Mezzanine Lender of any direct or indirect membership interests of Borrower under any pledge agreement under the Mezzanine Loan, including under the Mezzanine Pledge Agreement; and
(F) any transfer consummated of the direct or indirect interests of any Borrower by (or to) TRS NOIP Real Estate Holdco LLC to (or from) TRT NOIP Floating Rate CA LP Holdco LLC or to (or from) TRT NOIP Floating Real Estate Holdco LLC or (in accordance with this Section 6.3any such case) any Affiliate thereof.
Appears in 1 contract
Samples: Loan Agreement (Dividend Capital Total Realty Trust Inc.)
Permitted Equity Transfers. Notwithstanding anything to the restrictions contrary contained in this Article 68, the following equity transfers shall not be Prohibited Transfers and shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or Party, (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange and (provided, that, d) in addition to the foregoing provisions of this transfers permitted by clause (cb), any other transaction involving the direct and/or indirect equity interests in a Restricted Party (other than a pledge) shall not be deemed to waive, qualify or that would otherwise limit Borrower’s obligation to comply (or to cause fit within the compliance with) the other covenants set forth herein and in the other Loan Documents definition of Prohibited Transfer (including, without limitation, a transaction of the covenants contained herein relating to ERISA matterstype described in clauses (iii), (v), (vi) or (vii) of Section 8.2(b) hereof) constituting a transfer of less than 10% of the direct and/or indirect equity ownership of any Borrower, Guarantor, Sponsor any SPE Component Entity and/or Affiliated Manager; provided, further, thathowever, with respect to the transfers listed in clauses (a) and/or ), (b) or (d) above, (A) Lender shall receive not less than thirty five (305) days prior written notice of such transfersthereof, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor Sponsor or Affiliated Manager (provided, however, a “change in Control” of Sponsor or Affiliated Manager shall not be deemed to have occurred for the purposes of this subsection (B) if any one of the persons or entities comprising the definition of “Sponsor” contained herein succeeds to the interest of the then current Sponsor and such successor Sponsor Controls the Affiliated Manager; ), (C) after giving effect to such transfers, Sponsor any one of the entities comprising the defined term “Sponsor” shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity of any Borrower, (II) Control each Borrower and any SPE Component Entity of any Borrower and (III) control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; Qualified Manager, (E) in the case of the transfer of any direct or indirect equity ownership interests in any Borrower or in any SPE Component Entity of any Borrower, such transfers shall be conditioned upon continued compliance with the relevant provisions of Sections 4.2 and 4.3 hereof and (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer (in one or in a series of transactions) in excess of 49% (in the aggregate) of any equity ownership interests (I) directly in any Borrower or in any SPE Component Entity of any Borrower, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions delivery to Lender of Article 5 hereof; (F) a substantive non-consolidation opinion, which such transfers opinion shall be conditioned upon Borrower’s ability toprovided by outside counsel acceptable to Lender and the Rating Agencies and shall otherwise be in form, after giving effect scope and substance reasonably acceptable to Lender and acceptable to the equity transfer in question Rating Agencies (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transferopinion, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph“New Non-Consolidation Opinion”). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (American Assets Trust, Inc.)
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: consent (aeach, a “Permitted Equity Transfer”):
(i) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, ;
(bii) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (cincluding, without limitation, transfers for estate planning purposes);
(iii) the sale, transfer or issuance of shares of securities, preferred or common stock in any Restricted Party Party, including STAG or any other Person who directly or indirectly holds such securities or interests or who is a Multi-Asset Person that is a publicly traded entity, provided in each such case, such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (regardless whether such transfer or issuance is of publicly traded securities or interests); provided that, after such transfer, STAG shall continue to Control Borrower;
(iv) the sale, transfer or issuance of stock in a Restricted Party to third party investors through licensed U.S. broker-dealers in accordance with Applicable Law (provided, that, the foregoing provisions of this clause clauses (ciii) and (iv) shall not be deemed to waive, qualify or otherwise limit Borrower’s Borrowers’ obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters));
(v) in connection with a credit-line financing, any pledge (but not the foreclosure of such pledge by the lender thereunder without the Lender’s consent thereto) of direct or indirect equity interests in, and/or right to distributions from, Guarantor or any Multi-Asset Person or any of their Affiliates (other than Borrowers) to secure a loan to any such Persons; provided that (A) such credit line financing benefits all or substantially all of the portfolio of such Multi-Asset Person, and (B) the value of the equity in the Properties which is indirectly pledged as collateral under such credit line of financing constitutes no more than twenty five percent (25%) of the total value of all assets directly or indirectly securing such credit line of financing at the time of such pledge;
(vi) the merger or consolidation of STAG with or into any other Person or sale of all or substantially all of the assets of STAG (each, a “STAG Transfer” and, collectively, “STAG Transfers”); provided, furtherhowever, that, in connection with respect any such STAG Transfer or series of STAG Transfers (other than pursuant to clause (iii) above), Lender’s prior written consent (not to be unreasonably withheld, conditioned or delayed) shall be required unless after giving effect to such STAG Transfer, STAG (or the transfers listed successor entity thereto) shall be a Qualified Transferee.
(b) Each of the Permitted Equity Transfers described in subsection (a) above (other than in clauses (aii) and/or (b) abovesolely in respect of limited partners in Guarantor), (Aiii) and (iv)), shall be subject to the following additional conditions:
(i) Lender shall receive not less than thirty (30) days prior written notice of any Permitted Equity Transfer other than a Permitted Equity Transfer pursuant to clause (a)(i), for which no notice is required unless such transfers, provided, however, prior written notice Transfer shall not be required with respect to transfers result in either (x) a change of Control of the subject Borrower or Borrowers or (y) the transferee owning at least 25% direct or indirect equity ownership interests interest in Sponsor which do not result any Borrower;
(ii) other than as expressly provided in clause (a)(vi) in connection with a change in Control of Sponsor; (B) STAG Transfer, no such transfers Transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; ;
(Ciii) other than as expressly provided in clause (a)(vi) in connection with a STAG Transfer, after giving effect to such transfersTransfers, Sponsor Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control each Borrower and any SPE Component Entity Entity; and (III) control the day-to-day operation of the any Property; ;
(Div) after giving effect to such transfersTransfers, the Property Properties shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; Qualified Manager, if applicable;
(Ev) in the case of the transfer of any direct equity ownership interests in any Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof;
(vi) in the case of (1) the transfer of the management of any Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any direct or indirect equity ownership interests in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in any Borrower or in any SPE Component Entity that did not own the same on the date hereof or at the time of the delivery of any New Non-Consolidation Opinion prior to such transfer, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer; and
(Fvii) such transfers shall be conditioned upon Borrower’s Borrowers’ ability to, after giving effect to the equity transfer in question question, (I) remake the representations contained herein relating to ERISA ERISA, OFAC and Patriot Act matters (and, upon Lender’s request, each Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfertransfer and (y) searches, acceptable to Lender, for any Person owning, directly or indirectly, 20% or more of the interests in each Borrower as a result of such transfer that did not own the same on the date hereof) and (II) continue to comply with the covenants contained herein relating to ERISA OFAC and Patriot Act matters; .
(viii) If, as a result of a Permitted Equity Transfer, Guarantor no longer either Controls or owns any direct or indirect interest in Borrowers, it shall also be a condition hereunder that one or more Affiliates of the transferee of such interest that is reasonably acceptable to Lender in all respects and either Controls Borrowers or owns a direct or indirect interest in Borrowers (G) an “Acceptable Replacement Guarantor”), shall execute and deliver a replacement guaranty of recourse obligations and environmental indemnity agreement (in the same form as the Guaranty and Environmental Indemnity delivered to Lender by Guarantor on the date hereof), pursuant to which, in each case, such Acceptable Replacement Guarantor agrees to be liable under such guaranty of recourse obligations and environmental indemnity agreement, in each case, from and after giving effect to the date of such transfer, Permitted Equity Transfer and whereupon the Guarantor Control Condition shall be satisfied. Notwithstanding released from any further liability under the above, Guaranty and Environmental Indemnity to which it is a Sponsor Level Pledge party from and after the date of such Permitted Equity Transfer and such Acceptable Replacement Guarantor shall thereafter be permitted hereunder the “Guarantor” for all purposes set forth in this Agreement and the other Loan Documents.
(and a Sponsor Level Pledge may be effected without the consent or approval of Lenderc) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower Borrowers shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (ai) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (bii) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or Party, (ciii) the sale, transfer or issuance of shares of common stock in any Restricted Party that is or becomes a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (ciii) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)), or (iv) subject to Subsection (b) below, a transfer (but not the pledge) of direct or indirect equity ownership interests in Sponsor (each, an “ARC III Transfer”); provided, further, that, with respect to the transfers listed in clauses (ai), (ii) and/or (biv) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, providedexcept in connection with any transfer of shares in the REIT (defined below) in connection with the REIT’s redemption program for which reporting is completed as required pursuant to applicable securities laws, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) subject to Subsection (b) below, no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) directly or indirectly Control Borrower and any SPE Component Entity Entity; and (III) directly or indirectly control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; , (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any direct or indirect equity ownership interests in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, provided that the same was not previously delivered pursuant to Section 4.21 hereof, (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA ERISA, OFAC, and Patriot Act matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA OFAC and Patriot Act matters; , and (GIT) after giving effect to such transfer, the Guarantor Control Condition transfers shall be satisfied. Notwithstanding the above, not cause a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Property Document Event. Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
(b) Notwithstanding the foregoing or anything contained herein to the contrary, an ARC III Transfer shall only be permitted (without Lender’s consent and without payment of any fee), provided that the requirements set forth in Section 6.3(a) above are otherwise satisfied, and provided, further, that the following conditions are met: (i) no Event of Default shall have occurred and be continuing, (ii) after giving effect to such transfer, Sponsor shall be Controlled by one (1) or more Qualified Equityholders and (iii) Lender shall receive copies of all instruments effectuating such transfer promptly after giving effect to such transfer.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Trust III, Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions anything contained in this Article 6the Loan Documents to the contrary, the following equity transfers Transfers (but in no event pledges) of legal or beneficial ownership of any Equity Interests shall not be permitted without Lender’s consentdeemed to be a Prohibited Transfer and shall not require the consent of Lender or the payment of any transfer or similar fee in connection therewith: (a) a transfer (but not a pledge) Transfer by devise or descent or by operation of law upon the death or as a result of the legal incapacity of a natural person of such Person’s interest in a Restricted Party to the person or persons lawfully entitled thereto; (b) provided no Event of Default then exists, Transfers of Equity Interests made in good faith for estate planning purposes of an individual’s interests in any Restricted Party to the spouse or any memberlineal descendant of such individual, partner or shareholder to a trust for the benefit of any one or more of such individual, spouse or lineal descendant, provided to the extent applicable to a Restricted Party, such Restricted Party is reconstituted, if required, following such Transfer; (bc) provided no Event of Default then exists, the transfer or issuance (but not the pledge), in one or a series Transfer of transactions, any of the stock, partnership interests or membership interests (as the case may be) Equity Interests in a Restricted Party Party; or (cd) the sale, transfer or issuance of shares of common stock the Equity Interests in any Restricted Party that is a publicly traded entity, provided such shares of common stock are and listed on the New York Stock Exchange or another nationally recognized publicly-traded stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))exchange; provided, further, thathowever, with respect to the transfers listed in clauses (a) and/or ), (b), (c) and (d) above, all of the following requirements shall have been satisfied (except that the requirements set forth in clause (iii) below shall not be applicable to any Transfer described in clause (d) above):
(i) following such Transfer, the Control of Borrower and the responsibility for the day-to-day management and operation of Borrower shall be, directly or indirectly, held and maintained by Guarantor (even though there may be a change in Control of Guarantor if Guarantor is an Entity whose Equity Interests are then traded and listed on the New York Stock Exchange or another nationally recognized publicly-traded stock exchange);
(ii) following such Transfer, (A) Borrower shall continue to satisfy the requirements of Section 7.4 hereof, and (B) Borrower shall continue to comply with the representations, warranties and covenants contained in Sections 5.19, 6.1 and 7.3 hereof (and upon written request of Lender, deliver to Lender a statement signed by a responsible officer or other similar authorized party on behalf of Borrower which certifies to such compliance); and
(iii) with respect to any such Transfer which causes the transferee (or any other Person), together with its Affiliates, to acquire or increase its beneficial ownership interest in Borrower, directly or indirectly, to twenty-five percent (25%) (or ten percent (10%) if a foreign entity or individual) or more of the aggregate issued and outstanding beneficial ownership interests of Borrower after giving effect to such Transfer, and such transferee (or other Person) and its Affiliates prior to such Transfer did not already own, directly or indirectly, a twenty-five percent (25%) (or ten percent (10%) if a foreign entity or individual) or more of the aggregate issued and outstanding beneficial ownership interests in the Borrower, then Lender shall receive have received:
(A) written notice of such Transfer not less than thirty (30) days prior written notice to the date of which such Transfer is to become effective;
(B) all appropriate papers, certificates and affidavits required by Lender that evidence the organization, good standing, qualification to business and tax status of the transferee, which papers, certificates and affidavits shall include certified copies of all documents relating to the organization and formation of such transferstransferee and of the Persons, providedif any, howeverwhich are the beneficial owners of twenty-five percent (25%) (or ten percent (10%) if a foreign entity or individual) or more of the aggregate issued and outstanding Equity Interests of the transferee and organizational charts reflecting such Transfer;
(C) such documents and information requested by Lender to confirm that such proposed transferee will satisfy the requirements of this Agreement, prior written notice and sufficient for Lender to satisfy such “know-your-customer” diligence requirements to be performed by Lender pursuant to any Legal Requirements applicable to Lender or by Lender’s policies, including without limitation, all information, documentation, and certifications that Lender requests regarding beneficial owners of the Borrower pursuant to the Beneficial Ownership Regulation and customary searches (including without limitation credit, judgment, lien, litigation, bankruptcy, criminal and Patriot Act/terrorist watch list) the results of which shall not be required reasonably acceptable to Lender with respect to transfers of direct such transferee (or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsorother applicable Person), Guarantor or Affiliated Manager; (C) and to confirm that after giving effect to such transfersTransfer that no Person holding, Sponsor shall directly or indirectly, a twenty-five percent (I25%) own at least (or ten percent (10%) if a 51% direct foreign entity or indirect equity individual) or more beneficial ownership interest in each of Borrower and shall be a Prohibited Person or otherwise a Person with whom Lender would be prohibited, pursuant to any SPE Component EntityLegal Requirements applicable to Lender or by Lender’s policies, to engage in the transaction under the Loan Documents; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; and
(D) payment or reimbursement of any and all actual and reasonable out-of-pocket costs and expenses paid or incurred by Lender in connection with such Transfer, including, without limitation, all attorneys' fees and all search or other third-party fees and expenses incurred in connection with any diligence performed by Lender as described in subparagraph (C) above. A Transfer satisfying the requirements of this Section 3.2 shall be referred to as a “Permitted Transfer”. Notwithstanding anything to the contrary set forth above in this Section 3.2, Lender shall be entitled from time to time to request that Borrower provide Lender promptly after giving effect to each such transfers, written request with an updated organizational chart for Borrower that confirms the Property shall continue to be managed by Affiliated Manager or a New Manager approved identity in accordance with the applicable terms and conditions hereof; (E) in the case requirements of the transfer Beneficial Ownership Regulation and any other applicable Legal Requirements (if any) of any Person which, together with its Affiliates, has acquired through any one or more Transfers a direct equity or indirect beneficial ownership interests interest of twenty-five percent (25%) (or ten percent (10%) if a foreign entity or individual) or more in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) this Agreement. All actual and (II) continue to comply with the covenants contained herein relating to ERISA matters; reasonable out-of-pocket costs and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to expenses incurred by Lender in connection with its review of any of the Loan reflecting foregoing Transfers shall be paid by Borrower whether or not any equity transfer consummated in accordance with this Section 6.3such Transfer is consummated.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: consent (each, a “Permitted Equity Transfer”): (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (including, without limitation, transfers for estate planning purposes), (c) the sale, transfer Sale or issuance Pledge of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange exchange, and (d) the sale, transfer or issuance of stock or other equity interest in a Restricted Party to third party investors through licensed U.S. broker-dealers in accordance with Applicable Law (provided, that, the foregoing provisions of this clause clauses (c) and (d) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (A) (1) Lender shall receive written notice of any transfers pursuant to clause (a) above within ten (10) Business Days of such transfer and (2) Lender shall receive not less than thirty (30) days prior written notice of such transferstransfers in connection with any transfer pursuant to clause (b) above, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall transfers (I1) own at least a not less than 51% of the direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; Entity is owned by a Permitted Transferee and (II2) a Permitted Transferee shall Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; , (DC) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (ED) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; , (E) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any direct or indirect equity ownership interests in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower or in any SPE Component Entity that did not own the same on the date hereof or at the time of the delivery of any New Non-Consolidation Opinion prior to such transfer, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, and (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I1) remake the representations contained herein relating to ERISA ERISA, OFAC and Patriot Act matters (and, upon Lender’s request, Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer and (y) Patriot Act searches, bankruptcy searches, criminal background searches and such other searches which are customarily obtained by commercial mortgage lenders or required by applicable laws, rules and regulations applicable to Lender, acceptable to Lender, for any Person owning, directly or indirectly, 20% or more of the interests in the Borrower as a result of such transfer) and (II2) continue to comply with the covenants contained herein relating to ERISA OFAC and Patriot Act matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (ai) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (bii) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or Party, (ciii) the sale, transfer or issuance of shares of common stock in any Restricted Party that is or becomes a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange Exchange, the NASDAQ Global Select Market or another nationally recognized stock exchange (provided, that, provided that the foregoing provisions of this clause (ciii) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)), (iv) subject to Subsection (b) below, a transfer (but not the pledge) of direct or indirect equity ownership interests in Sponsor (each, an “ARC III Transfer”), or (v) the creation or issuance of new limited partnership interests by the Sponsor; provided, further, that, with respect to the transfers listed in clauses (ai), (ii), (iv) and/or (bv) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, providedexcept in connection with any transfer listed in clause (v) above and/or any transfer of shares in the REIT (defined below) in connection with the REIT’s redemption program for which reporting is completed as required pursuant to applicable securities laws, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) subject to Subsection (b) below, no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) directly or indirectly Control Borrower and any SPE Component Entity Entity; and (III) directly or indirectly control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; , (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any direct or indirect equity ownership interests in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, provided that the same was not previously delivered pursuant to Section 4.21 hereof, (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA ERISA, OFAC, and Patriot Act matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA OFAC and Patriot Act matters; , and (GH) after giving effect to such transfer, the Guarantor Control Condition transfers shall be satisfied. Notwithstanding the above, not cause a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Property Document Event. Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
(b) Notwithstanding the foregoing or anything contained herein to the contrary, an ARC III Transfer shall only be permitted (without Lender’s consent and without payment of any fee), provided that the requirements set forth in Section 6.3(a) above are otherwise satisfied, and provided, further, that the following conditions are met: (i) no Event of Default shall have occurred and be continuing, (ii) after giving effect to such transfer, Sponsor shall be Controlled by one (1) or more Qualified Equityholders and (iii) Lender shall receive copies of all instruments effectuating such transfer promptly after giving effect to such transfer.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Trust III, Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consentconsent and, unless specifically otherwise provided below, without payment of any fee or prior notice to Lender: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or Borrower, (c) the any issuance, sale, transfer or issuance other disposition of shares of common stock in any Restricted Party that is a publicly traded entityGuarantor so long as such issuance, provided such sale, transfer or other disposition does not result in (i) Guarantor no longer being the sole general partner of the Operating Partnership, (ii) the Operating Partnership no longer being the sole owner of each Borrower, and (iii) one Person or group of Affiliated Persons acquiring more than 49% of the voting shares of common stock are listed on the New York Stock Exchange Guarantor in one or another nationally recognized stock exchange a series of related transactions (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)), (d) any issuance, sale, transfer or other disposition of any limited partnership interests in the Operating Partnership so long as such issuance, sale, transfer or other disposition does not result in (i) Guarantor no longer being the sole general partner of the Operating Partnership and (ii) the Operating Partnership no longer being the sole owner of each Borrower (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)) and provided further that any pledge of the direct or indirect interests in the Operating Partnership shall only be permitted if (x) such pledge is given to an Institutional Lender to secure a loan to Guarantor by such Institutional Lender that is either fully recourse to the Guarantor or is secured by a substantial portion of the assets of Guarantor or (y) such pledge is given by an owner in the Operating Partnership that is not an Affiliate of Borrower or Guarantor provided not more than twenty-five percent (25%) of the limited partnership interests in the Operating Partnership are pledged in the aggregate pursuant to this clause (y) and (e) any issuance, sale, transfer or other disposition of direct or indirect membership interests in Affiliated Manager (provided, that, the foregoing provisions of this clause (e) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the issuances, sales, transfers or other dispositions listed in clauses (a), (b), (c), (d) and/or (be) above, above the following conditions shall also apply (except as noted below): (A) with respect to the transfers described in clause (b) only, Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers issuance, sale, transfer or other disposition shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfersissuance, Sponsor sale, transfer or other disposition, Guarantor shall remain publicly registered under The United States Securities Exchange Act of 1934, as amended and shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the each Individual Property; (D) after giving effect to such transfersissuance, the sale, transfer or other disposition, each Individual Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of any Individual Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity or (III) in the event any issuance, sale, transfer or other disposition (whether or not such transfers issuance, sale, transfer or other disposition is permitted hereunder) results in any Person owning, directly or indirectly, in excess of forty-nine percent (49%) of the ownership interest in Borrower, such issuance, sale, transfer or other disposition shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such issuance, sale, transfer or other disposition; and (G) such issuance, sale, transfer or other disposition shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfertransfer as Lender may request regarding such transfers) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity issuance, sale, transfer or other disposition consummated in accordance with this Section 6.3.
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Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6IX, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA mattersProvisions)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (A1) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B2) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C3) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component EntityPrincipal; (II) Control Borrower and any SPE Component Entity Principal and (III) control the day-to-day operation of the Property; (D4) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E5) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component EntityPrincipal, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereofSPE Provisions; and (F6) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to contained in the ERISA matters Provisions (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Provisions. Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.39.2.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (including, without limitation, transfers for estate planning purposes), (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange exchange, and (providedd) the sale, that, transfer or issuance of stock in a Restricted Party that is a non-traded public real estate investment trust to third party investors through licensed U.S. broker-dealers in accordance with Applicable Law (provided that the foregoing provisions of this clause clauses (c) and (d) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance withcompliance) with the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect only to the transfers listed in clauses (a) and/or (b) above, (A) if such transfer results in any Person owning, directly or indirectly, 20% or more of the interests in the Borrower, and such Person did not own 20% of more of the interests in Borrower prior to such transfer, then (x) Lender shall receive written notice of any transfers pursuant to clause (a) above within ten (10) days of such transfer and (y) Lender shall receive not less than thirty (30) days prior written notice of such transferstransfers in connection with any transfer pursuant to clause (b) above, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor shall (I) in the aggregate own (or be the settlor of a trust that owns) at least a 510.62% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity Entity; and (III) control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; , (F) intentionally omitted, and (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question question, (I) remake the representations contained herein relating to ERISA ERISA, OFAC and Patriot Act matters (and, upon Lender’s request, Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer and (y) searches, acceptable to Lender, for any Person owning, directly or indirectly, 20% or more of the interests in the Borrower as a result of such transfer) and (II) continue to comply with the covenants contained herein relating to ERISA OFAC and Patriot Act matters; and (G) after giving effect . Prior to such transferSecuritization, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3; provided that, so long as all equity transfers completed since Borrower’s delivery of the most recent prior updated organizational chart meet the requirements of this Section 6.3, such updated organizational chart will not be required to contain an update to the ownership of the direct and indirect equity interests in Hall Capital III, LP. Furthermore, in the event of the death or incompetency of any Guarantor, it shall not be an Event of Default hereunder, provided that, a Satisfactory Replacement Guarantor (as defined in the Guaranty) is provided pursuant to the terms of Section 23 of the Guaranty.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or Party, (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange or (d) the sale, transfer or issuance of shares of common stock in Lightstone Value Plus Real Estate Investment Trust III, Inc., a Maryland corporation (provided, that, the foregoing provisions of this clause clauses (a), (b), (c) and (d) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a), (b) and/or (bd) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, transfers (provided, howeverthat, prior written (I) for purposes of clarification, with respect to the transfers contemplated in subsection (a) above, the aforesaid notice shall not only be deemed to be required thirty (30) days prior to the consummation of the applicable transfers made as a result of probate or similar process following such death (as opposed to prior notice of the applicable death) and (II) no notice shall be required with respect to transfers of direct or indirect ownership interests in Sponsor which do any transfer that (x) does not result in a change to the organization chart delivered to Lender in connection with the origination of the Loan, (y) does not result in any Person (together with its Affiliates) owning more than a ten percent (10%) direct and/or indirect interest in the aggregate in Borrower that did not own said interest prior to consummation of the transfer and (z) does not cause a change in Control of (whether direct or indirect) in Borrower, Guarantor, any SPE Component Entity, and/or Sponsor); (B) no such transfers shall result in a change in Control of Sponsor, Guarantor Guarantor, Affiliated Manager or Affiliated ManagerFranchisor; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of each Borrower and any each SPE Component Entity; (II) Control each Borrower and any each SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be (I) managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereofhereof and (II) operated, “flagged” and branded pursuant to a Qualified Franchise Agreement with a Qualified Franchisor; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of the Property (or any portion thereof) to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, (2) the transfer of the operation, “flagging” and/or branding of the Property to a new Affiliated Franchisor in accordance with the applicable terms and conditions hereof, (3) the addition and/or replacement of a Guarantor and/or Sponsor in accordance with the applicable terms and conditions hereof and of the Guaranty or (4) the transfer of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, addition and/or replacement; (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; (H) such transfers shall be permitted pursuant to the terms of the Property Documents; and (GI) after giving effect to such transfertransfers, the Guarantor Control Condition shall continue to be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender with (y) a revised version of the organizational chart delivered Organizational Chart reflecting any equity transfer consummated in accordance with this Section 6.3 and (z) credit searches (in form, scope and substance and from a provider, in each case, reasonably acceptable to Lender in connection Lender) with the Loan reflecting respect to any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Samples: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust III, Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained (a) Transfers of (but not a mortgage, pledge, hypothecation, encumbrance or grant of a security interest in) up to forty nine and nine-tenths percent (49.9%) of direct or indirect beneficial interests in this Article 6, the following equity transfers Borrower shall be permitted without LenderRequisite Lenders’ or Administrative Agent’s consent: consent provided (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (A) Lender shall receive not less than Administrative Agent receives thirty (30) days prior written notice thereof, (b) immediately prior to such Transfer or as a result of such transfersTransfer, providedno Event of Default shall have occurred and be continuing or shall occur, however(c) subsequent to such Transfer, Borrower will continue to be a Single Purpose Entity, (d) subsequent to such Transfer, Guarantor shall directly or indirectly own a minimum of twenty-five percent (25%) of the direct or indirect equity interests in Borrower and Control Borrower, and (e) such Transfer shall not result in a violation of any Applicable Law, including, without limitation, ERISA, and such Transfer does not result in a violation of Sections 3.28 or 3.29 of this Agreement.
(b) Borrower shall obtain Requisite Lenders’ prior written notice shall consent to a Transfer of (but not be required with respect a mortgage, pledge, hypothecation, encumbrance or grant of a security interest in) more than forty nine and nine-tenths percent (49.9%) and up to transfers seventy-five percent (75%) of direct or indirect ownership beneficial interests in Sponsor which do Borrower, such consent of Requisite Lenders not to be unreasonably withheld, conditioned or delayed, provided (a) Administrative Agent receives thirty (30) days prior written request for consent to such Transfer, (b) immediately prior to such Transfer or as a result of such Transfer, no Event of Default shall have occurred and be continuing or shall occur, (c) subsequent to such Transfer, Borrower will continue to be a Single Purpose Entity, (d) subsequent to such Transfer, Guarantor shall directly or indirectly own a minimum of twenty-five percent (25%) of the direct or indirect equity interests in Borrower and Control Borrower, and (e) such Transfer shall not result in a change in Control violation of Sponsor; (B) no any Applicable Law, including, without limitation, ERISA, and such transfers shall Transfer does not result in a change in Control violation of Sponsor, Guarantor Sections 3.28 or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions 3.29 of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3Agreement.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: consent (each, a “Permitted Equity Transfer”): (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (including, without limitation, transfers for estate planning purposes), (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange exchange, and (providedd) the sale, that, transfer or issuance of stock in a Restricted Party that is a non-traded public real estate investment trust to third party investors through licensed U.S. broker-dealers in accordance with Applicable Law (provided that the foregoing provisions of this clause clauses (c) and (d) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance withcompliance) with the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect only to the transfers listed in clauses (a) and/or (b) above, (A) (x) Lender shall receive written notice of any transfers pursuant to clause (a) above within ten (10) days of Borrower’s notice of such transfer and (y) Lender shall receive not less than thirty (30) days prior written notice of such transferstransfers in connection with any transfer pursuant to clause (b) above, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity Entity; and (III) control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; , (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any direct or indirect equity ownership interests in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower or in any SPE Component Entity that did not own the same on the date hereof or at the time of the delivery of any New Non-Consolidation Opinion prior to such transfer, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question question, (I) remake the representations contained herein relating to ERISA ERISA, OFAC and Patriot Act matters (and, upon Lender’s request, Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer and (y) searches, acceptable to Lender, for any Person owning, directly or indirectly, 20% or more of the interests in the Borrower as a result of such transfer) and (II) continue to comply with the covenants contained herein relating to ERISA OFAC and Patriot Act matters; , and (GH) without the prior written consent of Lender, after giving effect to such transfertransfers, the Guarantor Control Condition no party shall be satisfied. Notwithstanding the aboveown, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent directly or approval of Lender) so long as any transfers made in connection therewith (exclusive indirectly, 49% or more of the actual grant interests in any Borrower unless such party owned 49% or more of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)interests in either Borrower prior to such transfers. Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Samples: Loan Agreement
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (ai) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted PartyParty (other than a transfer of the direct interests in Borrower, Mortgage Borrower, Mezzanine A Borrower or any Xxxxxx Intermediate Entity), (bii) the (1) transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party (other than the transfer of the direct interests in Borrower, Mortgage Borrower, Mezzanine A Borrower or any Xxxxxx Intermediate Entity) or (c2) subject to Section 6.2(b)(ix) above, sale, transfer, issuance or pledge of LTIP Units (other than the transfer or pledge of the direct interests in Borrower, Mortgage Borrower, Mezzanine A Borrower or any Xxxxxx Intermediate Entity), or (iii) the sale, transfer transfer, pledge or issuance of shares of common stock or securities convertible into or exchangeable for shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause clauses (ci), (ii) and (iii) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (ai) and/or (bii) above, (A) except with respect to the sale, transfer, issuance or pledge of LTIP Units, Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers sale, transfer, issuance or pledge, as applicable, shall result in a change in Control of Sponsor, Guarantor or Affiliated ManagerManager (provided that a change in the board of Guarantor shall not constitute a violation of this clause (B)); (C) after giving effect to such transferssale, Sponsor transfer, issuance or pledge, as applicable, Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and Borrower, Mezzanine A Borrower, any SPE Component EntityEntity (as defined herein, in the Mezzanine A Loan Agreement and in the Mortgage Loan Agreement) and each Mortgage Borrower; (II) Control Borrower and Borrower, Mezzanine A Borrower, any SPE Component Entity (as defined herein, in the Mezzanine A Loan Agreement and in the Mortgage Loan Agreement), and each Mortgage Borrower and (III) control the day-to-day operation of the PropertyProperties; (D) after giving effect to such transferssale, transfer, issuance or pledge, as applicable, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower such sale, transfer, issuance or in any SPE Component Entitypledge, such transfers as applicable, shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or if after giving effect to such transfers sale, transfer, issuance or pledge, as applicable, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing such sale, transfer, issuance or pledge; (G) such sale, transfer, issuance or pledge, as applicable, shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; (H) to the extent that any sale, transfer, issuance or pledge, as applicable, results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; (I) such sale, transfer, issuance or pledge, as applicable, shall be permitted pursuant to the terms of the Property Documents; and (GJ) after giving effect to such sale, transfer, issuance or pledge, as applicable, the Guarantor Control Condition shall continue to be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide (or cause to be provided to) Lender a revised version of the organizational chart Organizational Chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
(b) Notwithstanding the restrictions contained in this Article 6, so long as no Event of Default has occurred and shall be continuing, a Private Company Transaction shall be permitted without Lender’s consent provided that: (A) Lender shall receive not less than thirty (30) days prior written notice of such Private Company Transaction; (B) after giving effect to such Private Company Transaction, Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in Borrower, Mezzanine A Borrower, any SPE Component Entity (as defined herein, in the Mezzanine A Loan Agreement and in the Mortgage Loan Agreement), and any Mortgage Borrower; (II) Control Borrower, Mezzanine A Borrower, any SPE Component Entity (as defined herein, in the Mezzanine A Loan Agreement and the Mortgage Loan Agreement), and any Mortgage Borrower and (III) control the day-to-day operation of the Properties; (C) after giving effect to such Private Company Transaction, the Property shall continue to be managed by Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (D) such Private Company Transaction shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (E) in the case of the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or if after giving effect to such Private Company Transaction, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing such Private Company Transaction; (F) such Private Company Transaction shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; (G) to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such Private Company Transaction; (H) such transfers shall be permitted pursuant to the terms of the Property Documents; (I) after giving effect to such transfers, the Guarantor Control Condition shall continue to be satisfied, (J) after giving effect to such Private Company Transaction, a Private Company Replacement Guarantor shall be either (I) a Private Company Qualified Transferee or (II) be controlled by, and at least fifty-one percent (51%) directly or indirectly owned by a Private Company Qualified Transferee, (K) Lender shall have received a Rating Agency Confirmation with respect to such transfer, (L) a Private Company Replacement Guarantor shall execute (I) a recourse guaranty in form and substance substantially similar to the Guaranty and otherwise reasonably acceptable to Lender (provided that the Private Company Replacement Guarantor shall not be required to comply with the covenants set forth in Section 28 of the Guaranty in effect as of the Closing Date, but such Private Company Replacement Guarantor shall be required to comply with, and such recourse guaranty shall contain, the covenants set forth on Schedule XVIII hereof) and (II) an environmental indemnity in form and substance substantially similar to the Environmental Indemnity and otherwise reasonably acceptable to Lender, (M) after giving effect to such Private Company Transaction, such Private Company Replacement Guarantor shall (I) own at least a 20% direct or indirect equity ownership interest in each of Borrower, Mezzanine A Borrower, Mortgage Borrower and any SPE Component Entity (as defined herein in the Mezzanine A Loan Agreement and in the Mortgage Loan Agreement), (II) Control Borrower, Mezzanine A Borrower, Mortgage Borrower and any SPE Component Entity (as defined herein, in the Mezzanine A Loan Agreement and in the Mortgage Loan Agreement) and (III) control the day-to-day operation of the Properties and (N) Borrower shall have delivered to Lender evidence satisfactory to Lender that Mortgage Borrower and Mezzanine A Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement and the Mezzanine A Loan Agreement with respect to the Private Company Transaction corresponding to the Private Company Transaction requested pursuant to this Section 6.3(b). Borrower shall have the right to consult with Lender with regard to a Private Company Transaction prior to Borrower’s written notice of such Private Company Transaction as required pursuant to this Section 6.3(b).
(c) Notwithstanding the restrictions contained in this Article 6, so long as no Event of Default has occurred and shall be continuing, a Public Company Transaction shall be permitted without Lender’s consent provided that: (A) Lender shall receive not less than thirty (30) days prior written notice of such Public Company Transaction; (B) after giving effect to such Public Company Transaction, Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Mezzanine A Borrower, any SPE Component Entity (as defined herein, in the Mezzanine A Loan Agreement and in the Mortgage Loan Agreement), and each Mortgage Borrower; (II) Control Borrower, Mezzanine A Borrower, any SPE Component Entity (as defined herein, in the Mezzanine A Loan Agreement and in the Mortgage Loan Agreement) and each Mortgage Borrower and (III) control the day-to-day operation of the Properties; (C) after giving effect to such Public Company Transaction, the Property shall continue to be managed by Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (D) such Public Company Transaction shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (E) in the case of the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or if after giving effect to such Public Company Transaction, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, Borrower shall deliver to Lender a New Non-Consolidation Opinion addressing such Public Company Transaction; (F) such Public Company Transaction shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; (G) to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such Public Company Transaction; (H) such transfers shall be permitted pursuant to the terms of the Property Documents; (I) after giving effect to such transfers, the Guarantor Control Condition shall continue to be satisfied, (J) after giving effect to such Public Company Transaction, a Public Company Replacement Guarantor shall be either (I) a Public Company Qualified Transferee or (II) be controlled by, and at least fifty-one percent (51%) directly or indirectly owned by a Public Company Qualified Transferee, (K) Lender shall have received a Rating Agency Confirmation with respect to such transfer; (L) a Public Company Replacement Guarantor shall execute (I) a recourse guaranty in form and substance substantially similar to the Guaranty and otherwise reasonably acceptable to Lender (provided that the Public Company Replacement Guarantor shall not be required to comply with the covenants set forth in Section 28 of the Guaranty in effect as of the Closing Date but such Public Company Replacement Guarantor shall be required to comply with, and such recourse guaranty shall contain, the covenants set forth on Schedule XIX hereof) and (II) an environmental indemnity in form and substance substantially similar to the Environmental Indemnity and otherwise reasonably acceptable to Lender, (M) after giving effect to such Public Company Transaction, such Public Company Replacement Guarantor shall (I) own at least a 20% direct or indirect equity ownership interest in each of Borrower, Mezzanine A Borrower, Mortgage Borrower and any SPE Component Entity (as defined herein, in the Mezzanine A Loan Agreement and in the Mortgage Loan Agreement), (II) Control Borrower, Mezzanine A Borrower, Mortgage Borrower and any SPE Component Entity (as defined herein, in the Mezzanine A Loan Agreement and in the Mortgage Loan Agreement) and (III) control the day-to-day operation of the Properties and (N) Borrower shall have delivered to Lender evidence satisfactory to Lender that Mortgage Borrower and Mezzanine A Borrower have complied with all of the terms and conditions set forth in the Mortgage Loan Agreement and Mezzanine A Loan Agreement with respect to the Public Company Transaction corresponding to the Public Company Transaction requested pursuant to this Section 6.3(c). Borrower shall have the right to consult with Lender with regard to a Public Company Transaction prior to Borrower’s written notice of such Public Company Transaction as required pursuant to this Section 6.3(c).
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Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6foregoing, none of the following equity transfers shall be deemed Prohibited Equity Transfers (and each shall be permitted hereunder without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation the consent of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledgeBeneficiary), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, thatno Event of Default shall have occurred and is continuing, the foregoing provisions of this clause assumption documentation (cif deemed necessary by Beneficiary) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply reasonably required by Beneficiary is executed (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, including without limitation, a re-affirmation by Guarantor), and Grantor pays all of Beneficiary’s reasonable out of pocket costs and expenses associated with Beneficiary’s review and documentation of the covenants contained herein relating Transfer:
(1) a Transfer by holders of direct interests in Grantor (each an “Interest Holder”) as of the date of the Transfer to ERISA matters)); another person or entity who is not an Interest Holder, provided, furtherhowever, thatthat (y) after taking into account any prior Transfers pursuant to this sentence, with respect whether to the transfers listed proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in clauses a change of Control (aas hereinafter defined) and/or of Grantor, and (bz) aboveGrantor shall give Beneficiary notice of such Transfer together with copies of all instruments effecting such Transfer reasonably requested by Beneficiary, (A) Lender shall receive not less than thirty (30) days prior written notice after the date of such transfersTransfer;
(2) any Transfer, sale, assignment or issuance, from time to time, of any interests in Grantor held, directly or indirectly, by Industrial Income Trust Inc., a Maryland corporation (“IIT”), or Guarantor, provided, however, prior written notice that IIT and Guarantor shall not be required with respect continue to transfers Control (as defined in clause (ii) in the definition of direct Control) directly or indirect ownership indirectly, the Grantor on the date of such Transfer; or
(3) (x) any Transfer, sale, assignment, or issuance from time to time, of interests in Sponsor which do not result IIT or Guarantor, including, without limitation, by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of IIT or Guarantor, (y) the listing of the securities in IIT or Guarantor on a national securities exchange, or (z) the conversion of IIT or Guarantor into an “open end fund”; provided, however, that, to the extent that any Transfer under subsection (x) above, results in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of SponsorIIT or Guarantor, Guarantor or Affiliated Manager; (C) after giving effect to such transfersas applicable, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in then Grantor must satisfy each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein conditions relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive an assumption of the actual grant Loan by a new transferee pursuant to the second paragraph of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraphParagraph 30(b). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
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Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (ai) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (bii) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or Party, (ciii) the sale, transfer or issuance of shares of common stock in any Restricted Party that is or becomes a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (ciii) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)), or (iv) subject to Subsection (b) below, a transfer (but not the pledge) of direct or indirect equity ownership interests in Sponsor (each, an “NYROP Transfer”); provided, further, that, with respect to the transfers listed in clauses (ai), (ii) and/or (biv) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, providedexcept in connection with any transfer of shares in the REIT (defined below) in connection with the REIT’s redemption program for which reporting is completed as required pursuant to applicable securities laws, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) subject to Subsection (b) below, no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) directly or indirectly, Control Borrower and any SPE Component Entity Entity; and (III) directly or indirectly, control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; , (F) [intentionally omitted], (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA ERISA, OFAC, and Patriot Act matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA OFAC and Patriot Act matters; , and (GH) after giving effect to such transfer, the Guarantor Control Condition transfers shall be satisfied. Notwithstanding the above, not cause a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Property Document Event. Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
(b) Notwithstanding the foregoing or anything contained herein to the contrary, an NYROP Transfer shall only be permitted (without Lender’s consent and without payment of any fee), provided that the requirements set forth in Section 6.3(a) above are otherwise satisfied, and provided, further, that the following conditions are met: (i) no Event of Default shall have occurred and be continuing, (ii) after giving effect to such transfer, Sponsor shall be Controlled by one (1) or more Qualified Equityholders and (iii) Lender shall receive copies of all instruments effectuating such transfer promptly after giving effect to such transfer.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital New York Recovery Reit Inc)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 66 or anything to the contrary contained in this Agreement, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledgepledge other than a Permitted Pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the a pledge, other than a Permitted Pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (including, without limitation, transfers for estate planning purposes), (c) the sale, pledge, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other applicable covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); (d) the sale, transfer (but not a pledge other than a Permitted Pledge) or issuance of equity interests in any Restricted Party that is intended to (and does after giving effect to such transfers) qualify as a real estate investment trust within the meaning of Section 856 of the IRS Code, provided that any issued preferred equity interests do not exceed 125 preferred shares with an aggregate liquidation preference of approximately $125,000, and further provided, that, the foregoing provisions of clause (d) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other applicable covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters), and (e) the pledge of any interest in Borrower in connection with the Lender’s exercise of the Mezzanine Option; provided, further, that, with respect only to the transfers listed in clauses (a) and/or ), (b) or (d) above, (A) (x) if, after giving effect to any transfer pursuant to clause (a) above, any Person is a KYC Person as a result of such transfer that was not a KYC Person prior to such transfer, Lender shall receive written notice of any such transfer within thirty (30) days after Borrower has knowledge of such transfer and (y) if after giving effect to any transfer pursuant to clause (b) above, any Person is a KYC Person as a result of such transfer that was not a KYC Person prior to such transfer, Lender shall receive not less than thirty fifteen (3015) days Business Days’ prior written notice of such transferstransfer, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in Guarantor no longer being a change in Control of Sponsorpublicly traded entity with its shares traded on the New York Stock Exchange or another nationally recognized stock exchange, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor Guarantor shall (I) own at least a fifty-one percent (51% %) direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.;
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s 's consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge, except the pledge by a non-controlling equity holder of its publicly traded interests in Xxxxxxx Real Estate Investment Trust, Inc., so long as such interests do not equal or exceed 10% of Guarantor, Xxxxxxx Real Estate Investment Trust, Inc. or Borrower), in one or a series of LOAN AGREEMENT – Page 69 41458-110/JANAF Shopping Yard (VA) transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or its Constituent Owners (including, without limitation, any such transfer related to or in connection with the estate planning of such transferor), (c) the sale, transfer or issuance of shares of common non-controlling stock in any Restricted Party that is a publicly traded entity, provided such shares of common non-controlling stock are listed on the New York Stock Exchange Exchange, NASDAQ or another nationally recognized stock exchange exchange, or (d) the REIT Transfers (provided, that, the foregoing provisions of this clause clauses (a), (b), (c) and (d) above shall not be deemed to waive, qualify or otherwise limit Borrower’s 's obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA and FIRRMA matters)); provided, further, that, that (A) with respect to the transfers listed in clauses (a) and/or (b) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, transfers (provided, howeverthat, prior written notice shall not be required for purposes of clarification, with respect to the transfers contemplated in subsection (a) above, the aforesaid notice shall only be deemed to be required thirty (30) days prior to the consummation of direct the applicable transfers made as a result of probate or indirect ownership interests in Sponsor which do not result in a change in Control similar process following such death (as opposed to prior notice of Sponsorthe applicable death)); (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, (2) the addition and/or replacement of a Guarantor and/or Sponsor in accordance with the applicable terms and conditions hereof and of the Guaranty or (3) the transfer of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, addition and/or replacement; and (G) such transfers shall be conditioned upon Borrower’s 's ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA and FIRRMA matters (and, upon Lender’s 's request, Borrower shall deliver to Lender an Officer’s 's Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA and FIRRMA matters; and (GH) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge transfers shall be permitted hereunder (and a Sponsor Level Pledge may be effected without pursuant to the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive terms of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Property Documents. Upon request from Lender, Borrower shall promptly provide Lender with (y) a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.36.3 and (z) "know your client" searches (in form, scope and substance and from a provider, in each case, reasonably acceptable to Lender) with respect to any transferee (I) that has any direct and/or indirect Control rights with respect to Borrower, any SPE Component Entity, and/or any Guarantor and did not possess said Control rights prior to the applicable transfer or (II) owning (when aggregated with all Affiliates of said Person) ten percent (10%) or more of the direct and/or indirect interests in Borrower, any SPE LOAN AGREEMENT – Page 70 41458-110/JANAF Shopping Yard (VA) Component Entity and/or any Guarantor and who did not own said ten percent (10%) direct or indirect interest prior to such transfer (provided, that, notwithstanding the foregoing provisions of this Section, satisfaction of this subsection (z) shall, at Lender's option, be a condition precedent to any such transfer).
Appears in 1 contract
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6foregoing or any other provision hereunder to the contrary, the following equity or property transfers shall be permitted and shall not be deemed Prohibited Equity Transfers (and each shall be permitted hereunder without the consent of Lender or the payment of any assumption fee), provided, (x) any of the applicable conditions set forth in this Section 15.1(c)(ii) are complied with by Borrower, (y) Borrower pays all of Lender’s consent: reasonable out of pocket costs and expenses in connection therewith and (az) a transfer (but not a pledge) by devise or descent or by operation of law upon in the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) event the transfer of any direct or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock indirect equity ownership in any Restricted Party that is a publicly traded entity, provided such shares results in any Person and its Affiliates owning in excess of common stock are listed on forty-nine percent (49%) of the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component EntityParty, such transfers transfers, if otherwise permitted hereunder, shall also be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver delivery to Lender of a new Non-Consolidation Opinion addressing such transfer:
(A) a sale, transfer or assignment (each, a “Transfer”) by holders of direct or indirect interests in Borrower (each an Officer’s Certificate containing such updated representations effective “Interest Holder”) as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof Disbursement Date (including, without limitation limitation, those interests held, directly or indirectly, by Dividend Capital Total Realty Trust Inc. (“TRT”) or Dividend Capital Total Realty Operating Partnership LP (“TROP”)) to another person or entity who is not an Interest Holder, provided, however, that (i) after taking into account any prior Transfers pursuant to this sentence, whether to the proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in a change of Control (as hereinafter defined) of Borrower or the day to day operations of the Property, (ii) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer reasonably requested by Lender, not less than thirty (30) days after the date of such Transfer; and (iii) no Default shall have occurred and is continuing;
(B) any Transfer, sale, assignment or issuance, from time to time, of (i) any securities in TRT, or (ii) any operating partnership units in TROP, provided, however, that TRT and TROP shall continue to (x) Control (as defined in clause (ii) in the definition of Control) directly or indirectly, the Borrower and the day to day operations of the Property on the date of such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Borrower;
(i) any Transfer, sale, assignment, or issuance from time to time, of the shares of stock or assets in TRT or TROP, (ii) any Transfer by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of TRT or TROP, (iii) the listing of the securities in TRT or TROP on a national securities exchange, (iv) the conversion of TRT or TROP, or any subsidiary thereof, into an “open end fund”, or (v) the transfer of any Property from Borrower to an affiliate of Borrower that is owned and controlled in substantially the same manner as Borrower is owned and controlled on the Disbursement Date and with the equivalent or better financial condition than that of Borrower (“Affiliate Transferee”) provided that (x) the organizational documents of the Affiliate Transferee are substantially similar to the organizational documents of Borrower and (y) the Affiliate Transferee executes assumption documentation reasonably required by Lender (it being understood and agreed that no assumption fee shall be payable in connection with any such assumption); provided, however, that, to the extent that any Transfer under subsections (i) or (ii) above, results in a change in Control of TRT or TROP, as applicable, the foregoing provisions of this paragraph). Upon request from Lender, then Borrower shall promptly provide Lender a revised version must satisfy each of the organizational chart delivered applicable conditions relating to Lender in connection with an assumption of the Loan reflecting by a new transferee pursuant to the applicable section within the Loan Agreement;
(D) subject to clause (C) above, a sale, issuance or Transfer of shares or other securities of TRT or any equity transfer consummated of its affiliates, which are listed on any national securities exchange; and
(1) the closing of the Mezzanine Loan and the execution and delivery of all of the Mezzanine Loan Documents and the performance of all of the obligations thereunder by Mezzanine Borrower and any other parties thereto and (2) foreclosure (or deed in accordance with this Section 6.3lieu of foreclosure) by Mezzanine Lender of any direct or indirect membership interests of Borrower under any pledge agreement under the Mezzanine Loan, including under the Mezzanine Pledge Agreement.
Appears in 1 contract
Samples: Loan Agreement (Dividend Capital Total Realty Trust Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 68, the following equity transfers shall be permitted without LenderAgent’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any direct or indirect member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the direct or indirect stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (including, without limitation, transfers for estate planning purposes), (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)), or (d) the REIT Transfer; provided, further, that, with respect to the transfers listed in clauses (a) and/or or (b) above), (A) Lender if any Person owns, directly or indirectly, 20% or more of the direct or indirect interests in Borrower (or 10% or more if such Person is not a U.S. citizen or otherwise not organized, formed or incorporated in the U.S.) as a result of such transfer that did not own such interest prior to such transfer or if such transfer shall result in Borrower no longer being Controlled by the Sponsor set forth in clause (i) of such definition, (x) Agent shall receive written notice of any transfers pursuant to clause (a) above within ten (10) days of such transfer and (y) Agent shall receive not less than thirty (30) days prior written notice of such transferstransfers in connection with any transfer pursuant to clause (b) above, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) except to the extent resulting from the death of any Individual Guarantor, no such transfers shall result in a change in Control of Sponsor, Pledgor, Guarantor or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor shall transfers (I) one or more Guarantors, in the aggregate, shall own at least a 5120% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.;
Appears in 1 contract
Samples: Loan Agreement (CaliberCos Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, in addition to Permitted Transfers, the following equity transfers (any such Transfer, a “Permitted Equity Transfer”) shall be permitted without Lender’s consent: consent or notice to Lender (other than to comply with Lender’s “know your customer” requirements as provided below or with respect to clause (f) below to the extent required by the Intercreditor Agreement):
(a) the Sale or Pledge, in one or a transfer series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (but not a pledgeexcluding the direct interests in Borrower or any SPE Component Entity);
(b) transfers by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or natural person;
(c) transfers of direct or indirect interests in Borrower for estate planning purposes to the salespouse, transfer any lineal descendant, sibling or issuance parent of shares such transferor (including any of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waiveby adoption), qualify or otherwise limit Borrower’s obligation to comply (or to cause a trust for the compliance withbenefit of any one or more of such Persons (excluding the direct interests in Borrower or any SPE Component Entity);
(d) the other covenants set forth herein and transfers of Publicly Traded Shares in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))a Public Vehicle or of any direct or indirect equity interest of any Person whose only equity interest in Borrower consists of Publicly Traded Shares in a Public Vehicle; provided, further, that, with respect to the transfers listed in clauses (a) and/or through (bd) above, ,
(A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (Ci) after giving effect to such transfersSale or Pledge (and in the case of a Sale or Pledge that is an upper-tier pledge for security purposes, Sponsor any subsequent foreclosure thereon), (A) Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall collectively own not less than twenty-five percent (I25%) own at least a 51% of the economic and direct or indirect equity ownership interest legal and beneficial interests in each of Borrower on an unencumbered and any SPE Component Entity; look-through basis, (IIB) Sponsor or a Qualified Equityholder shall Control Borrower and any SPE Component Entity Guarantor, and (IIIC) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the each Property shall continue to be managed by Affiliated Manager a Qualified Manager,
(ii) no Sale or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer Pledge of any direct equity ownership interests interest in Borrower or in any Borrower, any Mezzanine Borrower, any SPE Component Entity, such transfers Entity or any Mezzanine SPE Component Entity shall be conditioned upon continued compliance with permitted (other than pledges securing the relevant provisions of Mezzanine Loan),
(iii) no Individual Borrower or SPE Component Entity shall fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof; hereof by reason of such Sale or Pledge,
(Fiv) intentionally omitted,
(v) if such transfers shall be conditioned upon Borrower’s ability totransfer is a KYC Transfer, after giving effect to the equity transfer in question (IA) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable equity transfer) KYC Transfer, and (IIy) continue to comply with the covenants contained herein relating to ERISA matters; Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (GC) Borrower shall deliver prior written notice of such proposed KYC Transfer to Lender and such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (v) are satisfied,
(vi) prior to any transfer which, after giving effect to such transfer, results in more than the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder aggregate of forty-nine (and a Sponsor Level Pledge may be effected without the consent or approval of Lender49%) so long as any transfers made in connection therewith (exclusive of the actual grant direct or indirect interests in Borrower and/or any SPE Component Entity being transferred to a Person not owning at least forty-nine (49%) of the Sponsor Level Pledge) comply with all other applicable provisions hereof (includingdirect or indirect interests in Borrower and/or any SPE Component Entity, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lenderprior to such transfer, Borrower shall promptly provide deliver to Lender a revised version New Non-Consolidation Opinion or a “bring-down” of the organizational chart delivered Non-Consolidation Opinion reasonably acceptable to Lender in and, if required by Lxxxxx, the Rating Agencies. In connection with the Loan reflecting any equity transfer consummated in accordance with the terms of this Section 6.3, the organizational documents of any Person that owns a direct or indirect interest in Borrower may be amended to reflect such transfer so long as any such amendment does not violate the terms and provisions of Article 5 hereof. Notwithstanding anything to the contrary contained herein, Lxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a Permitted Equity Transfer,
(vii) such transfer shall not trigger any right of first refusal, option to purchase or default under any of the Property Documents or any Lease that has not expired or been waived prior to the consummation of transfer, or any default under the Property Management Agreement which has not been waived in writing by Manager prior to the consummation of such transfer,
(viii) to the extent Sponsor no longer Controls Borrower or owns a beneficial interest in Borrower, Borrower delivers to Lender (x) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Sale or Pledge from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender), upon which delivery the previous guarantor shall be released from any further liability under the Guaranty and Environmental Indemnity from acts, events and/or circumstances that arise from and after the date of such Sale or Pledge except liabilities caused by Guarantor and/or its Affiliates and such obligations that expressly survive termination, and
(ix) Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of Lender incurred in connection with Lxxxxx’s review of any transfer or proposed transfer, including, without limitation, reasonable attorneys’ fees and expenses whether or not such transfer is actually consummated;
(e) A Public Sale; provided that (i) if after giving effect to any such Public Sale, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower and/or any SPE Component Entity are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interest in Borrower and/or such SPE Component Entity, as applicable, prior to such Transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion or a “bring-down” of the Non-Consolidation Opinion reasonably acceptable to Lender and, to the extent a rated Securitization has occurred, the Rating Agencies, (ii) Borrower and any SPE Component Entity shall not fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof by reason of such Public Sale, and (iii) with respect to any KYC Transfer, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable KYC Transfer, and (y) Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall deliver prior written notice of such proposed KYC Transfer to Lender and such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (iii) are satisfied. Upon completion of any such Public Sale subject to and in accordance with the provisions of this Section 6.3(e), Guarantor shall be released as a guarantor under (I) the Guaranty for any acts occurring from and after such Public Sale (other than acts caused by Guarantor and/or its Affiliates); provided that Borrower delivers to Lender (x) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Public Sale from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender). For purposes of clarity, the provisions of this Section 6.3(e) shall not restrict the Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding any Borrower or any SPE Component Entity) from effectuating a restructuring and such Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding any Borrower or any SPE Component Entity) shall be permitted to effectuate a restructuring, including amending or modifying its organizational documents or commercial arrangements including any amendments or modifications reasonably determined by such Qualified Public Company to be required to satisfy stock exchange, quotation system listing or trading requirements. Notwithstanding anything to the contrary contained herein, Lxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a Public Sale, and
(f) the pledge of any interest in Borrower in connection with the Mezzanine Loan and the exercise of any rights or remedies Mezzanine Lender may have under the Mezzanine Loan Documents in accordance with the Intercreditor Agreement.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Permitted Equity Transfers. Notwithstanding the restrictions contained (a) A Transfer (but not a pledge or encumbrance) of an indirect beneficial interest in this Article 6, the following equity transfers Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one prior written consent or a series of transactions, of the stock, partnership interests or membership interests Rating Agency Confirmation if (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (Ai) Lender shall receive not less than receives thirty (30) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of such transfersDefault shall have occurred and be continuing, provided, however, prior written notice shall not be required with respect to transfers (iii) no more than forty-nine percent (49%) of the direct or indirect ownership interests in Sponsor which do Borrower or Mezzanine Borrower, HoldCo or any SPE Entity is being Transferred (in the aggregate of all such Transfers), (iv) the transferee is not result a Disqualified Transferee (v) HoldCo continues to own 100% of the ownership interests in a change Mezzanine Borrower and Mezzanine Borrower continues to own 100% of the ownership interests in Borrower, (vi) Guarantor retains Control of Sponsor; (B) no such transfers shall result in a change in Control of SponsorMaster Lessee, Guarantor or Affiliated Manager; (C) after giving effect HoldCo, Mezzanine Borrower and Borrower and continues to such transfersown, Sponsor shall (I) own directly and/or indirectly, at least a fifty-one percent (51% %) of the equity interests in Master Lessee, (vi) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease and (vii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect equity ownership interest interests in each Master Lessee or Guarantor is being Transferred (in the aggregate of Borrower and all such Transfers).
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Lender or a Rating Agency Confirmation:
(i) a Transfer of interests in any SPE Component Entity; Sponsor;
(IIii) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the Property; assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee, provided Borrower complies with Section 8.7 (Dand thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager a Transfer (but not a pledge or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) encumbrance in the case of the transfer any Transfer of interests in HoldCo) of any direct equity ownership interests in Borrower Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) Xxxx Capital Partners, LLC;
(2) Kohlberg Kravis Xxxxxxx & Co.;
(3) Vornado Realty, L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee;
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies;
(7) a transferee described in clause (iv) or (v) below;
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to, or transferee of all or substantially all of the assets of, any of the foregoing (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty-one percent (51%) percent of such transferee is owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and HoldCo and any Transfer of such interests in realization upon such pledge or encumbrance;
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty-one percent (51%) percent of the direct or indirect interests in HoldCo being owned by a Sponsor; and
(vii) a Transfer of direct or indirect interests in any SPE Component EntityPerson that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (eg, such transfers shall be conditioned upon continued compliance with Vornado Realty Trust). Notwithstanding the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s requestforegoing, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective not, and shall not permit or suffer any person to, pledge, hypothecate, encumber or grant a security interest in or lien on any direct or, except as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made set forth in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.38.5 indirect, interest in Borrower, Mezzanine Borrower or any SPE Entities.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests, membership interests or membership interests other securities (as the case may be) in a Restricted Party or (including, without limitation, transfers for estate planning purposes), (c) the sale, transfer or issuance of shares of common stock or other securities in any Restricted Party that is a publicly traded entity, provided such the shares of common stock of such entity are listed on the New York Stock Exchange or another nationally recognized stock exchange exchange, (d) the sale, transfer or issuance of stock or other securities in any Restricted Party that is a publicly registered non-listed real estate investment trust to third party investors through licensed U.S. broker-dealers in accordance with Applicable Law or Persons exempt from broker-dealer registration, (provided, that, the foregoing provisions of this clause clauses (c) and (d) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect only to the transfers listed in clauses (a) and/or (b) above, (A) (x) Lender shall receive written notice of any transfers pursuant to clause (a) above within ten (10) days of such transfer and (y) Lender shall receive not less than thirty (30) days prior written notice of such transferstransfers in connection with any transfer pursuant to clause (b) above, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and Entity; (III) control the day-to-day operation of the Property; and (IV) Sponsor shall (x) Control Borrower and any SPE Component Entity and (y) control the day-to-day operation of the Property, (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component EntityOperating Tenant, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; , (F) [intentionally omitted], and (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question question, (I) remake the representations contained herein relating to ERISA ERISA, OFAC and Patriot Act matters (and, upon Lender’s request, Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer and (y) searches, acceptable to Lender, for any Person owning, directly or indirectly, 25% (or, if such Person is not formed, organized or incorporated in, or is not a citizen of, the United States of America, 10%) or more of the interests in the Borrower as a result of such transfer) and (II) continue to comply with the covenants contained herein relating to ERISA ERISA, OFAC and Patriot Act matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6foregoing or any other provision hereunder to the contrary, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) and shall not be deemed to waiveProhibited Equity Transfers (and each shall be permitted hereunder without the consent of Lender or the payment of any assumption fee), qualify or otherwise limit Borrower’s obligation to comply provided, (or to cause x) any of the compliance with) the other covenants applicable conditions set forth herein in this Section 9.14(b) are complied with by Borrower, and (y) Borrower pays all of Lender’s reasonable out of pocket costs and expenses in connection therewith.
(1) a Transfer by holders of direct or indirect interests in Borrower (each an “Interest Holder”) as of the other Loan Documents Effective Date (including, without limitation, the covenants contained herein relating those interests held, directly or indirectly, by IIT or Guarantor) to ERISA matters)); another Person who is not an Interest Holder, provided, furtherhowever, thatthat (i) after taking into account any prior Transfers pursuant to this sentence, with respect whether to the transfers listed proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in clauses (a) and/or (b) abovea change of Control of Borrower or the day to day operations of the Property, (Aii) Borrower shall give Lender shall receive notice of such Transfer together with copies of all instruments effecting such Transfer reasonably requested by Lender, not less than thirty (30) days prior written notice after the date of such transfersTransfer; and (iii) no Default shall have occurred and is continuing;
(2) any Transfer or issuance, from time to time, of (i) any securities in IIT, or (ii) any operating partnership units in Guarantor, provided, however, prior written notice that IIT and Guarantor shall not be required with respect continue to transfers (x) Control (as defined in clause (ii) in the definition of direct Control) directly or indirect ownership indirectly, the Borrower and the day to day operations of the Property on the date of such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Sponsor which do not result Borrower;
(i) any Transfer or issuance from time to time, of the shares of stock or assets in IIT or Guarantor, (ii) any Transfer by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization of IIT or Guarantor, (iii) the listing of the securities in IIT or Guarantor on a national securities exchange, (iv) the conversion of IIT or Guarantor, or any subsidiary thereof, into an “open end fund”, or (v) the transfer of the Property from Borrower to an Affiliate of Borrower that is owned and controlled in substantially the same manner as Borrower is owned and controlled on the Effective Date and with the equivalent or better financial condition than that of Borrower (“Affiliate Transferee”) provided that (x) the organizational documents of the Affiliate Transferee are substantially similar to the organizational documents of Borrower and (y) the Affiliate Transferee executes assumption documentation reasonably required by Lender (it being understood and agreed that no assumption fee shall be payable in connection with any such assumption); provided, however, that, to the extent that any Transfer under clauses (i) or (ii) above results in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of SponsorIIT or Guarantor, Guarantor or Affiliated Manager; (C) after giving effect to such transfersas applicable, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control then the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers Loan shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; due and payable sixty (F60) days after such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Transfer and Borrower shall deliver pay all Indebtedness to Lender an Officer’s Certificate containing on or before the end of such updated representations effective as of the date of the consummation of the applicable equity transfersixty (60) and day period; and
(II4) continue subject to comply with the covenants contained herein relating to ERISA matters; and clause (G3) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent Transfer of shares or approval other securities of Lender) so long as IIT or any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (includingits Affiliates, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting which are listed on any equity transfer consummated in accordance with this Section 6.3national securities exchange.
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Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: :
(a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party (excluding the direct interests in Borrower, Pledgor, any SPE Component Entity, Additional Obligor or any Mezzanine Borrower) or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party (excluding the direct interests in Borrower, Pledgor, any SPE Component Entity, Additional Obligor or any Mezzanine Borrower), (c) reserved, (d) the sale, transfer or issuance of shares of common stock in any Restricted Party (excluding the direct interests in Borrower, Pledgor, Additional Obligor or any SPE Component Entity) that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange exchange, or (e) any pledge of the direct or indirect interests in Borrower in connection with a New Mezzanine Loan made subject to and in accordance with the provisions of Section 11.6 of this Agreement, and the foreclosure of the equity interests pledged in connection with the New Mezzanine Loan subject to and in accordance with the provisions of the Intercreditor Agreement; or any pledge of the direct or indirect interests in Borrower in connection with the Mezzanine Loan, and the foreclosure of the equity interests pledged in connection with such Mezzanine Loan subject to and in accordance with the provisions of the Intercreditor Agreement (provided, that, the foregoing provisions of this clause clauses (a), (b), (c), (d) and (e) above shall not be deemed to waive, qualify or otherwise limit Borrower’s (or Pledgor’s, Additional Obligor’s or any SPE Component Entity’s) obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a), (b) and/or (bc) above, (A) except in the case of a transfer of accommodation shares of any REIT in Borrower’s chain of ownership, Lender shall receive not less than thirty (30) days prior written notice of such transfers, transfers (provided, howeverthat, prior written notice shall not be required for purposes of clarification, with respect to the transfers contemplated in subsection (a) above, the aforesaid notice shall only be deemed to be required thirty (30) days prior to the consummation of direct the applicable transfers made as a result of probate or indirect ownership interests in Sponsor which do not result in a change in Control similar process following such death (as opposed to prior notice of Sponsorthe applicable death)); (B) no such transfers shall result in a change in Control of Sponsor, Guarantor Sponsor or Affiliated Manager; (C) after giving effect to such transfers, the Sponsor Control Condition shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Propertybe satisfied; (D) after giving effect to such transfers, the each Individual Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower Borrower, Pledgor, Additional Obligor or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of any Individual Property (or any portion thereof) to a new Affiliated Manager in accordance with the applicable terms and conditions hereof or (2) if after giving effect to such transfer more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower, Pledgor, Additional Obligor or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower, Pledgor, Additional Obligor or any SPE Component Entity as of the Closing Date, in each instance, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, addition and/or replacement; (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (GH) after giving effect to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 10% or greater equity interest (directly or indirectly) in Borrower, Pledgor, Additional Obligor or in any SPE Component Entity that did not own at 10% or greater equity interest (directly or indirectly) in Borrower, Pledgor, Additional Obligor or such SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; and (I) such transfers shall not be prohibited by the terms of the Property Documents, the Guarantor Control Condition shall be satisfied. Notwithstanding Ground Lease or the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3Condominium Documents.
Appears in 1 contract
Samples: Loan Agreement (Retail Value Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6foregoing or any other provision hereunder to the contrary, the following equity or property transfers shall be permitted and shall not be deemed Prohibited Equity Transfers (and each shall be permitted hereunder without the consent of Lender or the payment of any assumption fee), provided, (x) any of the applicable conditions set forth in this Section 15.1(c)(ii) are complied with by Borrower, (y) Borrower pays all of Lender’s consent: reasonable out of pocket costs and expenses in connection therewith and (az) a transfer (but not a pledge) by devise or descent or by operation of law upon in the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) event the transfer of any direct or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock indirect equity ownership in any Restricted Party that is results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower or in SPE Party, such transfers, if otherwise permitted hereunder, shall also be conditioned upon delivery to Lender of a publicly traded entitynew non-consolidation opinion addressing such transfer, provided such shares if a non-consolidation opinion was required in connection with the closing of common stock are listed on the New York Stock Exchange Loan:
(A) a sale, transfer or another nationally recognized stock exchange assignment (providedeach, that, a “Transfer”) by holders of direct or indirect interests in Borrower (each an “Interest Holder”) as of the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents Disbursement Date (including, without limitation, the covenants contained herein relating those interests held, directly or indirectly, by Industrial Income Trust Inc. (“IIT”) or Industrial Income Operating Partnership LP (“IIOP”) to ERISA matters)); another person or entity who is not an Interest Holder, provided, furtherhowever, thatthat (i) after taking into account any prior Transfers pursuant to this sentence, with respect whether to the transfers listed proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in clauses a change of Control (aas defined in clause (i) and/or and (bii) abovein the definition of Control, but for purposes of this clause (A) only, the percentage interest in clause (i) of the definition of Control shall be twenty percent (20%) of Borrower or the day to day operations of the Property, (ii) Borrower shall give Lender shall receive notice of such Transfer together with copies of all instruments effecting such Transfer reasonably requested by Lender, not less than thirty (30) days prior written notice after the date of such transfersTransfer; and (iii) no Default shall have occurred and is continuing;
(B) any Transfer, sale, assignment or issuance, from time to time, of (i) any securities in IIT, or (ii) any operating partnership units in IIOP, provided, however, prior written notice that IIT and IIOP shall not be required with respect continue to transfers (x) Control (as defined in clause (ii) in the definition of direct Control) directly or indirect ownership indirectly, the Borrower and the day to day operations of the Property on the date of such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Sponsor which do not result Borrower;
(i) any Transfer, sale, assignment, or issuance from time to time, of the shares of stock or assets in IIT or IIOP, (ii) any Transfer by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of IIT or IIOP, (iii) the listing of the securities in IIT or IIOP on a national securities exchange, (iv) the conversion of IIT or IIOP, or any subsidiary thereof, into an “open end fund”, or (v) the transfer of the Property from Borrower to an affiliate of Borrower that is owned and controlled in substantially the same manner as Borrower is owned and controlled on the Disbursement Date and with the equivalent or better financial condition than that of Borrower (“Affiliate Transferee”) provided that (x) the organizational documents of the Affiliate Transferee are substantially similar to the organizational documents of Borrower and (y) the Affiliate Transferee executes assumption documentation reasonably required by Lender (it being understood and agreed that no assumption fee shall be payable in connection with any such assumption); provided, however, that, to the extent that any Transfer under subsections (i) or (ii) above, results in a change in Control of SponsorIIT or IIOP, as applicable, then Borrower must satisfy each of the applicable conditions relating to an assumption of the Loan by a new transferee pursuant to the applicable section within the Loan Agreement; and
(BD) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; subject to clause (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent sale, issuance or approval Transfer of Lender) so long as shares or other securities of IIT or any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (includingits affiliates, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting which are listed on any equity transfer consummated in accordance with this Section 6.3national securities exchange.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, in addition to Permitted Transfers, the following equity transfers (any such Transfer, a “Permitted Equity Transfer”) shall be permitted without Lender’s consent: consent or notice to Lender (other than to comply with Lender’s “know your customer” requirements as provided below or with respect to clause (f) below to the extent required by the Intercreditor Agreement):
(a) the Sale or Pledge, in one or a transfer series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (but not a pledgeexcluding the direct interests in Borrower, Mortgage Borrower, any SPE Component Entity or any Mortgage SPE Component Entity);
(b) transfers by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or natural person;
(c) transfers of direct or indirect interests in Borrower for estate planning purposes to the salespouse, transfer any lineal descendant, sibling or issuance parent of shares such transferor (including any of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waiveby adoption), qualify or otherwise limit Borrower’s obligation to comply (or to cause a trust for the compliance withbenefit of any one or more of such Persons (excluding the direct interests in Borrower, Mortgage Borrower, any SPE Component Entity or any Mortgage SPE Component Entity);
(d) the other covenants set forth herein and transfers of Publicly Traded Shares in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))a Public Vehicle or of any direct or indirect equity interest of any Person whose only equity interest in Borrower consists of Publicly Traded Shares in a Public Vehicle; provided, further, that, with respect to the transfers listed in clauses (a) and/or through (bd) above,
(i) after giving effect to such Sale or Pledge (and in the case of a Sale or Pledge that is an upper-tier pledge for security purposes, any subsequent foreclosure thereon), (A) Lender Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall receive collectively own not less than thirty twenty-five percent (3025%) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of the economic and direct or indirect ownership legal and beneficial interests in Sponsor which do not result in a change in Control of Sponsor; Borrower and Mortgage Borrower on an unencumbered and look-through basis, (B) no such transfers Sponsor or a Qualified Equityholder shall result in a change in Control of SponsorBorrower, Guarantor or Affiliated Manager; Mortgage Borrower and Guarantor, and (C) each Property shall continue to be managed by a Qualified Manager,
(ii) no Sale or Pledge of any direct interest in Borrower, any Mortgage Borrower, Mezzanine B Borrower, any SPE Component Entity, any Mortgage SPE Component Entity or any Mezzanine B SPE Component Entity shall be permitted (other than pledges securing the Loan and the Mezzanine B Loan),
(iii) no Borrower, Mortgage Borrower, SPE Component Entity or no Mortgage SPE Component Entity shall fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof by reason of such Sale or Pledge,
(iv) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case own 100% of the Collateral,
(v) if such transfer of any direct equity ownership interests in Borrower or in any SPE Component Entityis a KYC Transfer, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (FA) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable equity transfer) KYC Transfer, and (IIy) continue to comply with the covenants contained herein relating to ERISA matters; Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (GC) Borrower shall deliver prior written notice of such proposed KYC Transfer to Lender and such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (v) are satisfied,
(vi) prior to any transfer which, after giving effect to such transfer, results in more than the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder aggregate of forty-nine (and a Sponsor Level Pledge may be effected without the consent or approval of Lender49%) so long as any transfers made in connection therewith (exclusive of the actual grant indirect interests in Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity being transferred to a Person not owning at least forty-nine (49%) of the Sponsor Level Pledge) comply with all other applicable provisions hereof (includingindirect interests in Borrower, without limitation and Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity, as applicable, the foregoing provisions of this paragraph). Upon request from Lenderprior to such transfer, Borrower shall promptly provide deliver to Lender a revised version New Non-Consolidation Opinion or a “bring-down” of the organizational chart delivered Non-Consolidation Opinion reasonably acceptable to Lender in and, if required by Xxxxxx, the Rating Agencies. In connection with the Loan reflecting any equity transfer consummated in accordance with the terms of this Section 6.3, the organizational documents of any Person that owns an indirect interest in Borrower may be amended to reflect such transfer so long as any such amendment does not violate the terms and provisions of Article 5 hereof. Notwithstanding anything to the contrary contained herein, Xxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a Permitted Equity Transfer,
(vii) such transfer shall not trigger any right of first refusal, option to purchase or default under any of the Property Documents or any Lease that has not expired or been waived prior to the consummation of transfer, or any default under the Property Management Agreement which has not been waived in writing by Manager prior to the consummation of such transfer,
(viii) to the extent Sponsor no longer Controls Borrower and Mortgage Borrower or owns a beneficial interest in Borrower or Mortgage Borrower, Borrower delivers to Lender (x) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Sale or Pledge from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender), upon which delivery the previous guarantor shall be released from any further liability under the Guaranty and Environmental Indemnity from acts, events and/or circumstances that arise from and after the date of such Sale or Pledge except liabilities caused by Guarantor and/or its Affiliates and such obligations that expressly survive termination, and
(ix) Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of Lender incurred in connection with Xxxxxx’s review of any transfer or proposed transfer, including, without limitation, reasonable attorneys’ fees and expenses whether or not such transfer is actually consummated;
(e) A Public Sale; provided that (i) if after giving effect to any such Public Sale, more than forty-nine percent (49%) in the aggregate of the indirect interests in Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) of the indirect interest in Borrower, Mortgage Borrower, any SPE Component Entity and/or any Mortgage SPE Component Entity, as applicable, prior to such Transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion or a “bring-down” of the Non-Consolidation Opinion reasonably acceptable to Lender and, to the extent a rated Securitization has occurred, the Rating Agencies, (ii) Borrower, Mortgage Borrower, any SPE Component Entity and any Mortgage SPE Component Entity shall not fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof by reason of such Public Sale, and (iii) with respect to any KYC Transfer, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable KYC Transfer, and (y) Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall deliver prior written notice of such proposed KYC Transfer to Lender and such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (iii) are satisfied. Upon completion of any such Public Sale subject to and in accordance with the provisions of this Section 6.3(e), Guarantor shall be released as a guarantor under (I) the Guaranty for any acts occurring from and after such Public Sale (other than acts caused by Guarantor and/or its Affiliates); provided that Borrower delivers to Lender (x) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Public Sale from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender). For purposes of clarity, the provisions of this Section 6.3(e) shall not restrict the Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding Borrower, Mortgage Borrower, any SPE Component Entity and any Mortgage SPE Component Entity) from effectuating a restructuring and such Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding Borrower, Mortgage Borrower, any SPE Component Entity and any Mortgage SPE Component Entity) shall be permitted to effectuate a restructuring, including amending or modifying its organizational documents or commercial arrangements including any amendments or modifications reasonably determined by such Qualified Public Company to be required to satisfy stock exchange, quotation system listing or trading requirements. Notwithstanding anything to the contrary contained herein, Xxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a Public Sale.
(f) The pledge of any interest in Borrower in connection with the Mezzanine B Loan and the exercise of any rights or remedies Mezzanine B Lender may have under the Mezzanine B Loan Documents in accordance with the Intercreditor Agreement.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, in addition to Permitted Transfers, the following equity transfers (any such Transfer, a “Permitted Equity Transfer”) shall be permitted without Lender’s consent: consent or notice to Lender (other than to comply with Lender’s “know your customer” requirements as provided below or with respect to clause (f) below to the extent required by the Intercreditor Agreement):
(a) the Sale or Pledge, in one or a transfer series of transfers, of the direct or indirect legal or beneficial equity interests in Borrower or direct or indirect interests in any Restricted Party (but not a pledgeexcluding the direct interests in Borrower, Mezzanine A Borrower, any SPE Component Entity or any Mezzanine A SPE Component Entity);
(b) transfers by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or natural person;
(c) transfers of direct or indirect interests in Borrower for estate planning purposes to the salespouse, transfer any lineal descendant, sibling or issuance parent of shares such transferor (including any of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waiveby adoption), qualify or otherwise limit Borrower’s obligation to comply (or to cause a trust for the compliance withbenefit of any one or more of such Persons (excluding the direct interests in Borrower, Mezzanine A Borrower, any SPE Component Entity or any Mezzanine A SPE Component Entity);
(d) the other covenants set forth herein and transfers of Publicly Traded Shares in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))a Public Vehicle or of any direct or indirect equity interest of any Person whose only equity interest in Borrower consists of Publicly Traded Shares in a Public Vehicle; provided, further, that, with respect to the transfers listed in clauses (a) and/or through (bd) above, ,
(A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (Ci) after giving effect to such transfersSale or Pledge (and in the case of a Sale or Pledge that is an upper-tier pledge for security purposes, Sponsor any subsequent foreclosure thereon), (A) Sponsor, a Qualified Equityholder, and/or a Qualified Public Company shall collectively own not less than twenty-five percent (I25%) own at least a 51% of the economic and direct or indirect equity ownership interest legal and beneficial interests in each of Borrower on an unencumbered and any SPE Component Entity; look-through basis, (IIB) Sponsor or a Qualified Equityholder shall Control Borrower and any SPE Component Entity Guarantor, and (IIIC) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the each Property shall continue to be managed by Affiliated Manager a Qualified Manager,
(ii) no Sale or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer Pledge of any direct equity ownership interests interest in Borrower or in any Borrower, any Mezzanine Borrower, any SPE Component Entity, such transfers Entity or any Mezzanine SPE Component Entity shall be conditioned upon continued compliance with the relevant provisions of permitted (other than pledges securing any Mezzanine Loan),
(iii) no Individual Borrower or SPE Component Entity shall fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof; hereof by reason of such Sale or Pledge,
(Fiv) intentionally omitted,
(v) if such transfers shall be conditioned upon Borrower’s ability totransfer is a KYC Transfer, after giving effect to the equity transfer in question (IA) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable equity transfer) KYC Transfer, and (IIy) continue to comply with the covenants contained herein relating to ERISA matters; Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (GC) Borrower shall deliver prior written notice of such proposed KYC Transfer to Lender and such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (v) are satisfied,
(vi) prior to any transfer which, after giving effect to such transfer, results in more than the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder aggregate of forty-nine (and a Sponsor Level Pledge may be effected without the consent or approval of Lender49%) so long as any transfers made in connection therewith (exclusive of the actual grant indirect interests in Borrower and/or any SPE Component Entity being transferred to a Person not owning at least forty-nine (49%) of the Sponsor Level Pledge) comply with all other applicable provisions hereof (includingindirect interests in Borrower and/or any SPE Component Entity, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lenderprior to such transfer, Borrower shall promptly provide deliver to Lender a revised version New Non-Consolidation Opinion or a “bring-down” of the organizational chart delivered Non-Consolidation Opinion reasonably acceptable to Lender in and, if required by Xxxxxx, the Rating Agencies. In connection with the Loan reflecting any equity transfer consummated in accordance with the terms of this Section 6.3, the organizational documents of any Person that owns an indirect interest in Borrower may be amended to reflect such transfer so long as any such amendment does not violate the terms and provisions of Article 5 hereof. Notwithstanding anything to the contrary contained herein, Xxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a Permitted Equity Transfer,
(vii) such transfer shall not trigger any right of first refusal, option to purchase or default under any of the Property Documents or any Lease that has not expired or been waived prior to the consummation of transfer, or any default under the Property Management Agreement which has not been waived in writing by Manager prior to the consummation of such transfer,
(viii) to the extent Sponsor no longer Controls Borrower or owns a beneficial interest in Borrower, Borrower delivers to Lender (x) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Sale or Pledge from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender), upon which delivery the previous guarantor shall be released from any further liability under the Guaranty and Environmental Indemnity from acts, events and/or circumstances that arise from and after the date of such Sale or Pledge except liabilities caused by Guarantor and/or its Affiliates and such obligations that expressly survive termination, and
(ix) Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of Lender incurred in connection with Xxxxxx’s review of any transfer or proposed transfer, including, without limitation, reasonable attorneys’ fees and expenses whether or not such transfer is actually consummated;
(e) A Public Sale; provided that (i) if after giving effect to any such Public Sale, more than forty-nine percent (49%) in the aggregate of the indirect interests in Borrower and/or any SPE Component Entity are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) of the indirect interest in Borrower and/or such SPE Component Entity, as applicable, prior to such Transfer, Borrower shall deliver to Lender a New Non-Consolidation Opinion or a “bring-down” of the Non-Consolidation Opinion reasonably acceptable to Lender and, to the extent a rated Securitization has occurred, the Rating Agencies, (ii) Borrower and any SPE Component Entity shall not fail to be a Special Purpose Entity pursuant to, and in accordance with, Article 5 hereof by reason of such Public Sale, and (iii) with respect to any KYC Transfer, (A) Borrower shall deliver to Lender (x) an Officer’s Certificate certifying that each KYC Transferee is not a Prohibited Person, in each case effective as of the date of the consummation of the applicable KYC Transfer, and (y) Satisfactory Search Results for such KYC Transferee, (B) such KYC Transferee has satisfied Lender’s “know your customer” requirements, and (C) Borrower shall deliver prior written notice of such proposed KYC Transfer to Lender and such KYC Transfer shall not be deemed permitted hereunder until the requirements of this clause (iii) are satisfied. Upon completion of any such Public Sale subject to and in accordance with the provisions of this Section 6.3(e), Guarantor shall be released as a guarantor under (I) the Guaranty for any acts occurring from and after such Public Sale (other than acts caused by Guarantor and/or its Affiliates); provided that Borrower delivers to Lender (x) a Replacement Guaranty for obligations and liabilities under the Guaranty and Environmental Indemnity occurring from and after such Public Sale from a Replacement Guarantor and (y) the organizational documents of such Replacement Guarantor, resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or a Replacement Guaranty and an enforceability and execution opinion covering the enforceability of such assumption of the Guaranty or the Replacement Guaranty against such Replacement Guarantor in the same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender). For purposes of clarity, the provisions of this Section 6.3(e) shall not restrict the Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding any Borrower or any SPE Component Entity) from effectuating a restructuring and such Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding any Borrower or any SPE Component Entity) shall be permitted to effectuate a restructuring, including amending or modifying its organizational documents or commercial arrangements including any amendments or modifications reasonably determined by such Qualified Public Company to be required to satisfy stock exchange, quotation system listing or trading requirements. Notwithstanding anything to the contrary contained herein, Xxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a Public Sale.
(f) The pledge of any interest in Borrower in connection with the Mezzanine A Loan and the exercise of any rights or remedies Mezzanine A Lender may have under the Mezzanine A Loan Documents and the pledge of any interest in Mezzanine A Borrower in connection with the Mezzanine B Loan and the exercise of any rights or remedies Mezzanine B Lender may have under the Mezzanine B Loan Documents, in each case, in accordance with the Intercreditor Agreement.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6foregoing or any other provision hereunder to the contrary, the following equity or property transfers shall be permitted and shall not be deemed Prohibited Equity Transfers (and each shall be permitted hereunder without the consent of Lender or the payment of any assumption fee), provided, (x) any of the applicable conditions set forth in this Section 15.1(c)(ii) are complied with by Borrower, (y) Borrower pays all of Lender’s consent: reasonable out of pocket costs and expenses in connection therewith and (az) a transfer (but not a pledge) by devise or descent or by operation of law upon in the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) event the transfer of any direct or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock indirect equity ownership in any Restricted Party that is results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower or in SPE Party, such transfers, if otherwise permitted hereunder, shall also be conditioned upon delivery to Lender of a publicly traded entitynew Non-Consolidation Opinion addressing such transfer:
(A) a sale, provided such shares transfer or assignment (each, a “Transfer”) by holders of common stock are listed on direct or indirect interests in Borrower (each an “Interest Holder”) as of the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents Disbursement Date (including, without limitation, the covenants contained herein relating those interests held, directly or indirectly, by Industrial Income Trust Inc. (“IIT”) or Industrial Income Operating Partnership LP (“IIOP”) to ERISA matters)); another person or entity who is not an Interest Holder, provided, furtherhowever, thatthat (i) after taking into account any prior Transfers pursuant to this sentence, with respect whether to the transfers listed proposed transferee or otherwise, no such Transfer (or series of Transfers) shall result in clauses a change of Control (aas defined in clause (i) and/or and (bii) abovein the definition of Control, but for purposes of this clause (A) only, the percentage interest in clause (i) of the definition of Control shall be twenty percent (20%) of Borrower or the day to day operations of the Property, (ii) Borrower shall give Lender shall receive notice of such Transfer together with copies of all instruments effecting such Transfer reasonably requested by Lender, not less than thirty (30) days prior written notice after the date of such transfersTransfer; and (iii) no Default shall have occurred and is continuing;
(B) any Transfer, sale, assignment or issuance, from time to time, of (i) any securities in IIT, or (ii) any operating partnership units in IIOP, provided, however, prior written notice that IIT and IIOP shall not be required with respect continue to transfers (x) Control (as defined in clause (ii) in the definition of direct Control) directly or indirect ownership indirectly, the Borrower and the day to day operations of the Property on the date of such Transfer and (y) own, directly or indirectly, at least 25% of all equity interests in Sponsor which do not result Borrower;
(i) any Transfer, sale, assignment, or issuance from time to time, of the shares of stock or assets in IIT or IIOP, (ii) any Transfer by operation of law resulting from the merger, consolidation, or non-bankruptcy reorganization, of IIT or IIOP, (iii) the listing of the securities in IIT or IIOP on a national securities exchange, (iv) the conversion of IIT or IIOP, or any subsidiary thereof, into an “open end fund”, or (v) the transfer of the Property from Borrower to an affiliate of Borrower that is owned and controlled in substantially the same manner as Borrower is owned and controlled on the Disbursement Date and with the equivalent or better financial condition than that of Borrower (“Affiliate Transferee”) provided that (x) the organizational documents of the Affiliate Transferee are substantially similar to the organizational documents of Borrower and (y) the Affiliate Transferee executes assumption documentation reasonably required by Lender (it being understood and agreed that no assumption fee shall be payable in connection with any such assumption); provided, however, that, to the extent that any Transfer under subsections (i) or (ii) above, results in a change in Control of SponsorIIT or IIOP, as applicable, then Borrower must satisfy each of the applicable conditions relating to an assumption of the Loan by a new transferee pursuant to the applicable section within the Loan Agreement; and
(BD) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; subject to clause (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent sale, issuance or approval Transfer of Lender) so long as shares or other securities of IIT or any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (includingits affiliates, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting which are listed on any equity transfer consummated in accordance with this Section 6.3national securities exchange.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is Clipper Realty Inc., a publicly traded entity, provided such shares of common stock are listed on Maryland corporation (the New York Stock Exchange or another nationally recognized stock exchange “Clipper REIT”) (provided, that, the foregoing provisions of this clause clauses (a), (b) and (c) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA and FIRRMA matters)); provided, further, that, with respect to the transfers listed in clauses (a), (b) and/or (bc) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required transfers (it being acknowledged that with respect to transfers any transfer contemplated by clause (c) above, no such notice shall be required if (i) the transfer shall otherwise comply with the requirements of direct this Section 6.3 (ii) the transfer does not cause any Person (or indirect ownership interests affiliated Persons) to own more than a ten (10%) interest in Sponsor which do Borrower that did not result in a change in Control of Sponsorpreviously own said interest); (B) no such transfers shall result in a change in Control of SponsorGuarantor or, Guarantor or to the extent applicable, any Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) Xxxxx Xxxxxxxxx, Xxx Xxxxxxxx and Sponsor Family Entities shall, in the aggregate, own at least a 5145% (of which 15% may be owned by Moric Bistricer) direct or indirect equity ownership interest in Berkshire Equity LLC and Berkshire Equity LLC shall own a 100% direct ownership interest in each of Borrower and any SPE Component Entity; (II) the Clipper REIT shall (x) serve as the general partner of Clipper Realty L.P., a Delaware limited partnership (the “Clipper REIT OP”), (y) Control Borrower and any SPE Component Entity and (IIIz) control the day-to-day operation of the PropertyProperty and (III) the Clipper REIT OP and the Clipper REIT shall own at least a twenty five percent (25%) direct and/or indirect interest in the Borrower; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated (I) to the extent a Manager Trigger has occurred, Manager or a New Manager approved in accordance with the applicable terms and conditions hereofhereof or (II) to the extent that a Manager Trigger has not occurred, Borrower; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer; (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA and FIRRMA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA and FIRRMA matters; and (GH) to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; (I) such transfers shall be permitted pursuant to the terms of the Property Documents; (J) after giving effect to such transfertransfers, the Guarantor Control Condition shall continue to be satisfied. Notwithstanding ; (K) Clipper REIT shall continue to satisfy the above, Eligibility Requirements until the Loan is indefeasible paid in full; and (L) at no time shall any Person serve on the REIT Board to the extent such Person is either (i) a Sponsor Level Pledge shall be permitted hereunder Sanctioned Person and/or (and a Sponsor Level Pledge may be effected without ii) not reputable or experienced in commercial real estate transactions similar involving properties similar to the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Property. Upon request from Lender, Borrower shall promptly provide Lender with (y) a revised version of the organizational chart Organizational Chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.36.3 and (z) “know your client” searches (in form, scope and substance and from a provider, in each case, reasonably acceptable to Lender) with respect to any transfer to which this Article applies (provided, that, notwithstanding the foregoing provisions of this Section, satisfaction of this subsection (z) shall, at Lender’s option, be a condition precedent to any such transfer).
Appears in 1 contract
Samples: Loan Agreement (Clipper Realty Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 68, the following equity transfers shall not be Prohibited Transfers and shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (including, without limitation, transfers for estate planning purposes), (c) the sale, transfer (including a pledge) or issuance of shares of common stock or preferred stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock or preferred stock are listed on the New York Stock Exchange Exchange, The Nasdaq Stock Market or another nationally recognized stock exchange (such entity, a “Publicly Traded Restricted Party”) (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)) and (d) the issuance, sale, conveyance, transfer, redemption, disposition or other voluntary or involuntary sale, conveyance, pledge, mortgage, grant, bargain, assignment, grant of any options with respect to, or any other transfer or disposition of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) of any shares of capital stock or other equity interests in Guarantor or Sponsor, including without limitation preferred stock, other capital stock or equity interests, or any obligations convertible into or exchangeable for, or giving any person a right, option or warrant to acquire, such capital stock or equity interests or such convertible or exchangeable obligations), provided such transfer does not result in a change in Control in Guarantor or Sponsor; provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, (A) (x) Lender shall receive written notice of any transfers pursuant to clause (a) above within ten (10) days of such transfer and (y) Lender shall receive not less than thirty (30) days prior written notice of such transferstransfers in connection with any transfer pursuant to clause (b) above, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity Entity; and (III) control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 6 hereof; , and (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question question, (I) remake the representations contained herein relating to ERISA ERISA, OFAC, Anti-Corruption Laws, AML Law, DPA, and CFIUS matters (and, except pursuant to clause (c) or (d), upon Lender’s request, Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer and (y) searches, acceptable to Lender, for any Person owning, directly or indirectly, 10% or more of the interests in Borrower as a result of such transfer) and (II) continue to comply with the covenants contained herein relating to ERISA ERISA, OFAC, Anti-Corruption Laws, AML Law, DPA, and CFIUS matters; and , (GH) after giving effect to no such transfer, the Guarantor Control Condition transfers shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent result in any Crowdfunded Person owning any direct or approval of Lender) so long as indirect interest in Borrower or any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)SPE Component Entity. Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer (excluding pursuant to clause (c) or (d)) consummated in accordance with this Section 6.38.3.
Appears in 1 contract
Samples: Loan Agreement (Gaia, Inc)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: consent (each, a “Permitted Equity Transfer”): (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (including, without limitation, transfers for estate planning purposes), (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)), (d) a Mezzanine Transfer, and (e) the Permitted Indirect Pledge; provided, further, that, with respect only to the transfers listed in clauses (a), (b) and/or (bd) above, :
(A) Lender shall receive not less than thirty (30) days prior written notice of any transfers within ten (10) days of such transfers, provided, however, prior written notice shall not be required transfer (or with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; any Mezzanine Transfer, the notice required pursuant to Section 6.6 below);
(B) other than in connection with any Mezzanine Foreclosure, no such transfers shall result in a change in Control of SponsorBorrower, Guarantor or Affiliated Manager; ;
(C) (x) other than in connection with any Mezzanine Foreclosure, after giving effect to such transfers, Sponsor shall (I) Sponsor and/or one or more Eligible Transferees, in the aggregate, (or in the event of a Mezzanine Foreclosure, a Qualified Transferee) shall own at least a fifty-one percent (51% %) direct or indirect indirect, legal and beneficial, equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Sponsor shall own at least a ten percent (10%) direct or indirect, legal and beneficial, equity ownership interest in Borrower and any SPE Component Entity and Entity; (III) Sponsor shall own at least a twenty percent (20%) direct or indirect, legal and beneficial, equity ownership interest in Guarantor and Control Guarantor, (IV) Guarantor shall own at least a ten percent (10%) direct or indirect, legal and beneficial, equity ownership interest in each Borrower; (V) Sponsor shall Control each Borrower and any SPE Component Entity; and (VI) Sponsor and/or a Qualified Manager shall control the day-to-day operation of the Property; and (y) in connection with any Mezzanine Foreclosure, a Qualified Transferee shall own at least a fifty-one percent (51%) direct or indirect, legal and beneficial, equity ownership interest in each of Borrower, Guarantor and any SPE Component Entity and shall control the day-to-day operation of the Property;
(D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; ;
(E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; ;
(F) in the case of the transfer of any direct or indirect equity ownership interests in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in any Borrower or in any SPE Component Entity that did not own the same on the date hereof or at the time of the delivery of any New Non-Consolidation Opinion prior to such transfer, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer; and
(G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) question, remake the representations contained herein relating set forth in Sections 3.7, 3.28 and 3.29 hereof and continue to ERISA matters (comply with the covenants set forth in Sections 3.7, 3.28, 3.29, 4.2(a), 4.2(c) and 4.19 hereof and, upon Lender’s request, Borrower shall deliver to Lender (x) an Officer’s Certificate containing such updated representations and covenants effective as of the date of the consummation of the applicable equity transfer) transfer and (IIy) continue searches, acceptable to comply with Lender, for any Person owning, directly or indirectly, 20% or more (or if such Person is not a citizen of the covenants contained herein relating to ERISA matters; and United States (Gor otherwise formed/incorporated in the United States) after giving effect to then ten percent (10%) or more) of the interests in the Borrower as a result of such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without LenderXxxxxx’s consent: :
(a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or Party; and/or
(cb) the sale, transfer or issuance of shares of common and preferred stock in Guarantor and any other Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (exchange; provided, that, the foregoing provisions of this clause clauses (ca) and (b) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses clause (a) and/or (b) above, (A) except in the case of a transfer of accommodation shares of any REIT in Borrower’s chain of ownership, Lender shall receive not less than thirty (30) days prior written notice of such transfers, transfers (provided, howeverthat, prior written notice shall not be required for purposes of clarification, with respect to the transfers contemplated in clause (a) above, the aforesaid notice shall only be deemed to be required thirty (30) days prior to the consummation of direct the applicable transfers made as a result of probate or indirect ownership interests in Sponsor which do not result in a change in Control similar process following such death (as opposed to prior notice of Sponsorthe applicable death)); (B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; (C) after giving effect to such transfers, the Sponsor Control Condition shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Propertybe satisfied; (D) after giving effect to such transfers, the each Individual Property shall continue to be managed by Affiliated Manager Manager
or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of any Individual Property (or any portion thereof) to a new Affiliated Manager in accordance with the applicable terms and conditions hereof or (2) if after giving effect to such transfer more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or any SPE Component Entity are owned by any Person and/or its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower or any SPE Component Entity as of the Closing Date, in each instance, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, addition and/or replacement; (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon LenderXxxxxx’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (GH) after giving effect to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity that did not own at 20% or greater equity interest (directly or indirectly) in Borrower or such SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; and (I) such transfers shall not be prohibited by the terms of the Property Documents, the Guarantor Control Condition shall be satisfied. Notwithstanding Ground Lease or the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Condominium Documents. Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart Organizational Chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Samples: Loan Agreement (SITE Centers Corp.)
Permitted Equity Transfers. (a) Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (ai) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (bii) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or Party, (ciii) the sale, transfer or issuance of shares of common stock in any Restricted Party that is or becomes a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (ciii) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)), or (iv) subject to Subsection (b) below, a transfer (but not the pledge) of direct or indirect equity ownership interests in Sponsor (each, an “ARC III Transfer”); provided, further, that, with respect to the transfers listed in clauses (ai), (ii) and/or (biv) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, providedexcept in connection with any transfer of shares in the REIT (defined below) in connection with the REIT’s redemption program for which reporting is completed as required pursuant to applicable securities laws, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) subject to Subsection (b) below, no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; , (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) directly or indirectly Control Borrower and any SPE Component Entity Entity; and (III) directly or indirectly control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; , (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; , (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any direct or indirect equity ownership interests in any Restricted Party that results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, provided that the same was not previously delivered pursuant to Section 4.21 hereof, (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA ERISA, OFAC, and Patriot Act matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA OFAC and Patriot Act matters; , and (GH) after giving effect to such transfer, the Guarantor Control Condition transfers shall be satisfied. Notwithstanding the above, not cause a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Property Document Event. Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
(b) Notwithstanding the foregoing or anything contained herein to the contrary, an ARC III Transfer shall only be permitted (without Lender’s consent and without payment of any fee), provided that the requirements set forth in Section 6.3(a) above are otherwise satisfied, and provided, further, that the following conditions are met: (i) no Event of Default shall have occurred and be continuing, (ii) after giving effect to such transfer, Sponsor shall be Controlled by one (1) or more Qualified Equityholders and (iii) Lender shall receive copies of all instruments effectuating such transfer promptly after giving effect to such transfer.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Trust III, Inc.)
Permitted Equity Transfers. Notwithstanding anything to the restrictions contrary contained in this Article 68, the following equity transfers shall not be Prohibited Transfers and shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party, (c) in addition to the transfers permitted by clause (b), any other transaction involving the direct and/or indirect equity interests in a Restricted Party (other than a pledge) that would fit within the definition of Prohibited Transfer (including, without limitation, a transaction of the type described in clauses (iv), (vi), (vii) or (cviii) of Section 8.2(b) hereof) constituting a transfer of less than 10% of the direct and/or indirect equity ownership of any Borrower, Guarantor, Sponsor any SPE Component Entity and/or Affiliated Manager and (d) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))exchange; provided, further, that, with respect to the transfers listed in clauses (a) and/or ), (b) or (c) above, each of the following are complied with in connection with any such transfer: (A) Lender shall receive not less than thirty five (305) days prior written notice of such transfersthereof, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor Sponsor or Affiliated Manager (provided, however, a “change in Control” of Sponsor or Affiliated Manager shall not be deemed to have occurred for the purposes of this subsection (B) if any one of the entities meeting the definition of “Sponsor” contained herein succeeds to the interest of the then current Sponsor and such successor Sponsor Controls the Affiliated Manager; ), (C) after giving effect to any such transferstransfer, Sponsor one of the entities meeting the definition of “Sponsor” contained herein shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower Borrower, Master Lessee (if the Master Lease Termination has not occurred) and any SPE Component Entity; , (II) Control Borrower Borrower, Master Lessee (if the Master Lease Termination has not occurred) and any SPE Component Entity and (III) control the day-to-day operation of the Property; , (D) after giving effect to any such transferstransfer, the Property (including, without limitation, the parking related activities thereon) shall continue to be managed by Affiliated Manager and Parking Manager (as applicable) or a New Manager approved in accordance with the applicable terms and conditions hereof; Qualified Manager, (E) in the case of the transfer of any direct or indirect equity ownership interests in Borrower Borrower, Master Lessee (if the Master Lease Termination has not occurred) or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; Sections 4.2, 4.3 and 5.9 hereof shall continue to be complied with after giving effect to such transfers, (F) in the case of (1) the transfer of the management or parking management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer (in one or in a series of transactions) in excess of 49% (in the aggregate) of any equity ownership interests (I) directly in Borrower, Master Lessee (if the Master Lease Termination has not occurred) or in any SPE Component Entity, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower, Master Lessee (if the Master Lease Termination has not occurred) or in any SPE Component Entity, Lender shall receive a substantive non-consolidation opinion, which such opinion shall be provided by outside counsel acceptable to Lender and the Rating Agencies and shall otherwise be in form, scope and substance reasonably acceptable to Lender and acceptable to the Rating Agencies (such opinion, the “New Non-Consolidation Opinion”) addressing the relevant transfer, (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) not cause a Property Document Event and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (GH) after giving effect to any such transfer, the Guarantor Control Condition shall continue to be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (American Assets Trust, Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is Clipper Realty Inc., a publicly traded entity, provided such shares of common stock are listed on Maryland corporation (the New York Stock Exchange or another nationally recognized stock exchange “Clipper REIT”) (provided, that, the foregoing provisions of this clause clauses (a), (b) and (c) above shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA and FIRRMA matters)); provided, further, that, with respect to the transfers listed in clauses (a), (b) and/or (bc) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required transfers (it being acknowledged that with respect to transfers any transfer contemplated by clause (c) above, no such notice shall be required if (i) the transfer shall otherwise comply with the requirements of direct this Section 6.3 (ii) the transfer does not cause any Person (or indirect ownership interests affiliated Persons) to own more than a ten (10%) interest in Sponsor which do Borrower that did not result in a change in Control of Sponsorpreviously own said interest); (B) no such transfers shall result in a change in Control of SponsorGuarantor or, Guarantor or to the extent applicable, any Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) Xxxxx Xxxxxxxxx, Xxx Xxxxxxxx and Sponsor Family Entities shall, in the aggregate, own at least a 5145% (of which 15% may be owned by Xxxxx Xxxxxxxxx) direct or indirect equity ownership interest in Berkshire Equity LLC and Berkshire Equity LLC shall own a 100% direct ownership interest in each of Borrower and any SPE Component Entity; (II) the Clipper REIT shall (x) serve as the general partner of Clipper Realty L.P., a Delaware limited partnership (the “Clipper REIT OP”), (y) Control Borrower and any SPE Component Entity and (IIIz) control the day-to-day operation of the PropertyProperty and (III) the Clipper REIT OP and the Clipper REIT shall own at least a twenty five percent (25%) direct and/or indirect interest in the Borrower; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated (I) to the extent a Manager Trigger has occurred, Manager or a New Manager approved in accordance with the applicable terms and conditions hereofhereof or (II) to the extent that a Manager Trigger has not occurred, Borrower; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity or (III) that results in any Person (together with its Affiliates) obtaining a direct and/or indirect interest in Borrower and any SPE Component Entity equal to or greater than 49% that didn’t hold said interest prior to the applicable Transfer, such transfers shall be conditioned upon delivery to Lender of a New Non- Consolidation Opinion addressing such transfer; (G) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA and FIRRMA matters (and, upon LenderXxxxxx’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA and FIRRMA matters; and (GH) to the extent that any transfer results in the transferee (either itself or collectively with its affiliates) owning a 20% or greater equity interest (directly or indirectly) in Borrower or in any SPE Component Entity, Lender’s receipt of the Satisfactory Search Results shall be a condition precedent to such transfer; (I) such transfers shall be permitted pursuant to the terms of the Property Documents; (J) after giving effect to such transfertransfers, the Guarantor Control Condition shall continue to be satisfied. Notwithstanding ; (K) Clipper REIT shall continue to satisfy the above, Eligibility Requirements until the Loan is indefeasible paid in full; and (L) at no time shall any Person serve on the REIT Board to the extent such Person is either (i) a Sponsor Level Pledge shall be permitted hereunder Sanctioned Person and/or (and a Sponsor Level Pledge may be effected without ii) not reputable or experienced in commercial real estate transactions similar involving properties similar to the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph)Property. Upon request from LenderXxxxxx, Borrower shall promptly provide Lender with (y) a revised version of the organizational chart Organizational Chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.36.3 and (z) “know your client” searches (in form, scope and substance and from a provider, in each case, reasonably acceptable to Lender) with respect to any transfer to which this Article applies (provided, that, notwithstanding the foregoing provisions of this Section, satisfaction of this subsection (z) shall, at Xxxxxx’s option, be a condition precedent to any such transfer).
Appears in 1 contract
Samples: Loan Agreement (Clipper Realty Inc.)
Permitted Equity Transfers. (a) A Transfer of a direct or indirect ownership interest in Mezzanine Borrower, Mortgage Borrower or the SPE Entities that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a Rating Agency Confirmation if (i) Mezzanine Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) no more than forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or any other SPE Entity is being Transferred (in the aggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, and (v) the Principal Control Persons collectively retain Control of Mortgage Borrower and Mezzanine Borrower and the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Mortgage Borrower, Mezzanine Borrower and the SPE Entities.
(b) Notwithstanding anything herein to the restrictions contained in this Article 6contrary, the following equity transfers Transfers shall be permitted without Lender’s consent: not require the prior written consent of or, except as otherwise required in clause (ay) below, notice to Mezzanine Lender or a Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the Xxxxxxxx Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the Xxxxxxxx Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Mezzanine Lender shall receive prior written notice:
(i) a transfer Transfer of (but not A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, and (B) any interests in the parent entities of such owners;
(ii) a pledgeTransfer of equity interests in any Guarantor, Sponsor or Master Lessee in conjunction with or after an initial public offering of shares, provided that from and after the consummation of such initial public offering, no Person or group other than the Principal Control Persons and Principal Investors (A) by devise shall have acquired beneficial ownership, directly or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactionsindirectly, of equity interests in Master Lessee representing more than twenty-five percent (25%) of the stockvoting power and economic interest in Master Lessee where such ownership represents a greater amount of the voting power or economic interest in Master Lessee than that which is then owned by the Principal Control Persons and Principal Investors in aggregate, partnership interests or membership interests (as the case may be) in a Restricted Party or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (cB) shall have obtained the power (whether or not be deemed exercised) to waive, qualify or otherwise limit Borrower’s obligation to comply elect a majority of the members of the board of directors (or to cause the compliance withsimilar governing body) the other covenants set forth herein and of Master Lessee;
(iii) Transfers of direct or indirect interests in the other Loan Documents Guarantors (including, without limitation, any combination of one or more Guarantors or a Guarantor with Sponsor), and the covenants contained herein relating pledge or grant of security interests, as permitted under the terms of the organizational documents for each of the Guarantors; and
(iv) the pledge, hypothecation, encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee to ERISA mattersan Approved Bank as security for the Revolving/Term Credit Facility (the “Revolving/Term Credit Facility Lien”), provided that the Revolving/Term Credit Facility Lien shall not be foreclosed upon unless (A) the ownership of such direct interest in Master Lessee following such foreclosure shall be held by an Approved Bank or a Qualified Transferee and comply with all Gaming Laws and (B) such foreclosure shall not create or cause a Default or Event of Default hereunder (provided that the occurrence of such foreclosure, so long as clause (A) is complied with, shall not of itself constitute a Default or Event of Default); provided. For purposes solely of this Section 8.5(b)(iv), further, that, with respect to the transfers listed term “Qualified Transferee” shall have the meaning set forth in clauses (a) and/or Section 1.1 except that the “$2 Billion” figure in clause (b) aboveof the definition in Section 1.1 is replaced with “$1 Billion.” Notwithstanding the foregoing, (A) Lender Mezzanine Borrower shall receive not less than thirty (30) days prior written notice of such transfersnot, provided, however, prior written notice and shall not be required with respect to transfers of permit or suffer any person to, pledge, hypothecate, encumber or grant a security interest in or lien on any direct or, except as set forth in this Section 8.5, indirect interest in Mortgage Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsorany SPE Entities, any Guarantor or Affiliated Manager; (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3Sponsor.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Permitted Equity Transfers. Notwithstanding anything to the restrictions contrary contained in this Article 68, the following equity transfers shall not be Prohibited Transfers and shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledgepledge (other than a Parent Level Pledge)) or Parent Level Pledge, in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party or Party, (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange exchange, (provided, that, d) in addition to the foregoing provisions of this transfers permitted by clause (cb), any other transaction involving the direct and/or indirect equity interests in a Restricted Party (other than a pledge) shall not be deemed to waive, qualify or that would otherwise limit Borrower’s obligation to comply (or to cause fit within the compliance with) the other covenants set forth herein and in the other Loan Documents definition of Prohibited Transfer (including, without limitation, a transaction of the covenants contained herein relating to ERISA matterstype described in clauses (iii), (v), (vi) or (vii) of Section 8.2(b) hereof) constituting a transfer of less than 10% of the direct and/or indirect equity ownership of any Borrower, Master Lessee (if the Master Lease Termination shall not have occurred), Guarantor, Sponsor any SPE Component Entity and/or Affiliated Manager and (e) the 1031 Equity Transfer; provided, further, thathowever, with respect to the transfers listed in clauses (a) and/or ), (b), (d) or (e) above, (A) Lender shall receive not less than thirty five (305) days prior written notice of such transfersthereof, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor Sponsor or Affiliated Manager (provided, however, a “change in Control” of Sponsor or Affiliated Manager shall not be deemed to have occurred for the purposes of this subsection (B) if any one of the persons or entities comprising the definition of “Sponsor” contained herein succeeds to the interest of the then current Sponsor and such successor Sponsor Controls the Affiliated Manager; ), (C) after giving effect to such transfers, Sponsor shall any one of the entities comprising the defined term “Sponsor” shall, subject to subsection (H) below, (I) either (aa) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; Borrower, Master Lessee (IIif the Master Lease Termination has not occurred) Control Borrower and any SPE Component Entity (it being understood that the requirement in this clause (aa) shall be deemed satisfied if such ownership is achieved by the end of the Sponsor Cure Period (defined below)), or (bb) own at least a (1) 1% direct or indirect equity interest in Venture and any SPE Component Entity applicable to Venture and GE Sponsor shall own at least a 50% direct or indirect equity interest in each of Venture and any SPE Component Entity applicable to Venture and (2) 51% direct or indirect equity interest in Firehill, any SPE Component Entity applicable to Firehill and Master Lessee (if the Master Lease Termination has not occurred), (II) Control each Borrower, Master Lessee (if the Master Lease Termination has not occurred) and each SPE Component Entity (if any) and (III) control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; Qualified Manager, (E) in the case of the transfer of any direct or indirect equity ownership interests in Borrower Borrower, Master Lessee (if the Master Lease Termination has not occurred) or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 Sections 4.2 and 4.3 hereof; , (F) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with the applicable terms and conditions hereof, or (2) the transfer (in one or in a series of transactions) in excess of 49% (in the aggregate) of any equity ownership interests (I) directly in Borrower, Master Lessee (if the Master Lease Termination has not occurred) or in any SPE Component Entity, or (II) in any Restricted Party (other than any Restricted Party owning equity interest above the level of GE Sponsor) whose sole asset is a direct or indirect equity ownership interest in Borrower, Master Lessee (if the Master Lease Termination has not occurred) or in any SPE Component Entity, such transfers shall be conditioned upon Borrower’s ability todelivery to Lender of a substantive non-consolidation opinion, after giving effect which such opinion shall be provided by outside counsel acceptable to Lender and the Rating Agencies and shall otherwise be in form, scope and substance reasonably acceptable to Lender and acceptable to the equity transfer in question Rating Agencies (I) remake such opinion, the representations contained herein relating to ERISA matters (and“New Non-Consolidation Opinion”), upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect if consummated prior to the Permitted Annex Termination, such transfertransfers shall not trigger any right of first refusal, option to purchase or default under the Guarantor Control Condition shall be satisfied. Notwithstanding the aboveAnnex Sublease, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of LenderH) so long as any transfers made in connection therewith with any transfer of any direct or indirect interest in any Borrower, Master Lessee (exclusive of if the actual grant of the Master Lease Termination has not occurred) and/or any SPE Component Entity to GE Sponsor, (1) GE Sponsor Level Pledgeshall hold such interest indirectly through GE Subsidiary and (2) comply with all other applicable provisions hereof (includingBorrower shall, without limitation at Lender’s option and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.first such
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (American Assets Trust, Inc.)
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6, the following equity transfers shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted PartyXxxxx National Operating Partnership I, L.P. or Xxxxx National REIT I, Inc., (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in Xxxxx National Operating Partnership I, L.P. or Xxxxx National REIT I, Inc. but only if such transfer is effected by a Restricted Party Person other than Sponsor or any Affiliate of Sponsor; or (c) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, with respect to the transfers listed in clauses (a) and/or (b) above, :
(A) Lender shall receive not less than thirty (30) days prior written notice of such transfers, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; ;
(B) no such transfers shall result in a change in Control of Sponsor, Guarantor or Affiliated Manager; ;
(C) after giving effect to such transfers, Sponsor shall (I) own at least a 5125% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; ;
(D) after giving effect to such transfers, (I) Xxxxx National Operating Partnership I, L.P. shall own at least a 75% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity and (II) Xxxxx National REIT I, Inc. shall remain as the sole general partner of Xxxxx National Operating Partnership I, L.P.
(E) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; ;
(EF) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; and
(FG) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the restrictions contained in this Article 6foregoing, none of the following equity transfers Transfers shall be permitted without Lender’s consentdeemed to be a Prohibited Equity Transfer so long as the Minimum Equity Requirement (defined below) remains satisfied following such Transfer: (aA) a transfer Transfer by a natural person who is a member, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both grantor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust (but not “Revocable Family Trust”); (B) a pledge) Transfer by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, ; (bC) the transfer or issuance (but not the pledge)a Transfer, in one or a series of transactions, of not more than 49% of the stock, limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party or where such Transfer does not result in a change in management control in the Restricted Party; (cD) the sale, transfer or issuance a Transfer of shares of common stock in any Restricted Party that is LaSalle Hotel Properties, a publicly traded entity, Maryland real estate investment trust (“LaSalle”); provided such shares of common stock are is listed on the New York Stock Exchange or another such other nationally recognized stock exchange exchange; and (providedE) a Qualifying Merger (defined below) of LaSalle. Subject to (e) of the definition of “Qualifying Merger” below, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters)); provided, further, that, it being understood that with respect to the transfers listed in clauses (a) and/or (bii)(C) above, (A) Lender Mortgagor shall receive not less than thirty (30) days deliver to Mortgagee at least 30 days’ prior written notice of such transfers, provided, however, prior written notice shall not be required transfer and with respect to the transfers of direct or indirect ownership interests listed in Sponsor which do not result in a change in Control of Sponsor; (ii)(A) and (B) no above, Mortgagor shall deliver written notice to Mortgagee of such transfers transfer at least 30 days after such transfer. Mortgage shall result not require notice of the transfer listed in a change in Control of Sponsor(ii)(D) above. As used herein “Minimum Equity Requirement” shall mean that (i) LaSalle must own, Guarantor at all time, directly or Affiliated Manager; (C) after giving effect to such transfersindirectly, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower Mortgagor and any SPE Component Entity; (II) Control Borrower and any SPE Component Entity Operating Tenant, and (IIIii) LaSalle shall control the day-to-day operation of the Property; (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms Mortgagor and conditions hereof; (E) in the case of the transfer of any direct equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfer, the Guarantor Control Condition shall be satisfied. Notwithstanding the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive of the actual grant of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated in accordance with this Section 6.3Operating Tenant.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding anything to the restrictions contrary contained in this Article 68, the following equity transfers shall not be Prohibited Transfers and shall be permitted without Lender’s consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a Restricted Party or any member, partner or shareholder of a Restricted Party, (b) the transfer or issuance (but not the pledge), in one or a series of transactions, of the stock, partnership interests or membership interests (as the case may be) in a Restricted Party, (c) in addition to the transfers permitted by clause (b), any other transaction involving the direct and/or indirect equity interests in a Restricted Party (other than a pledge) that would fit within the definition of Prohibited Transfer (including, without limitation, a transaction of the type described in clauses (iv), (vi), (vii) or (cviii) of Section 8.2(b) hereof) constituting a transfer of less than 10% of the direct and/or indirect equity ownership of any Borrower, Guarantor, Sponsor any SPE Component Entity and/or Affiliated Manager and (d) the sale, transfer or issuance of shares of common stock in any Restricted Party that is a publicly traded entity, provided such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange (provided, that, the foregoing provisions of this clause (c) shall not be deemed to waive, qualify or otherwise limit Borrower’s obligation to comply (or to cause the compliance with) the other covenants set forth herein and in the other Loan Documents (including, without limitation, the covenants contained herein relating to ERISA matters))exchange; provided, further, that, with respect to the transfers listed in clauses (a) and/or ), (b) or (c) above, each of the following are complied with in connection with any such transfer: (A) Lender shall receive not less than thirty five (305) days prior written notice of such transfersthereof, provided, however, prior written notice shall not be required with respect to transfers of direct or indirect ownership interests in Sponsor which do not result in a change in Control of Sponsor; (B) no such transfers shall result in a change in Control of Sponsor, Guarantor Sponsor or Affiliated Manager (provided, however, a “change in Control” of Sponsor or Affiliated Manager shall not be deemed to have occurred for the purposes of this subsection (B) if any one of the persons or entities comprising the definition of “Sponsor” contained herein succeeds to the interest of the then current Sponsor and such successor Sponsor Controls the Affiliated Manager; ), (C) after giving effect to such transfers, Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower and any SPE Component Entity; , (II) Control Borrower and any SPE Component Entity and (III) control the day-to-day operation of the Property; , (D) after giving effect to such transfers, the Property shall continue to be managed by Affiliated Manager or a New Manager approved in accordance with the applicable terms and conditions hereof; Qualified Manager, (E) in the case of the transfer of any direct or indirect equity ownership interests in Borrower or in any SPE Component Entity, such transfers shall be conditioned upon continued compliance with the relevant provisions of Article 5 hereof; (F) such transfers Sections 4.2, 4.3 and 5.9 hereof shall be conditioned upon Borrower’s ability to, after giving effect to the equity transfer in question (I) remake the representations contained herein relating to ERISA matters (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer) and (II) continue to comply be complied with the covenants contained herein relating to ERISA matters; and (G) after giving effect to such transfertransfers, (F) in the Guarantor Control Condition shall be satisfied. Notwithstanding case of (1) the above, a Sponsor Level Pledge shall be permitted hereunder (and a Sponsor Level Pledge may be effected without the consent or approval of Lender) so long as any transfers made in connection therewith (exclusive transfer of the actual grant management of the Sponsor Level Pledge) comply with all other applicable provisions hereof (including, without limitation and as applicable, the foregoing provisions of this paragraph). Upon request from Lender, Borrower shall promptly provide Lender Property to a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any equity transfer consummated new Affiliated Manager in accordance with this Section 6.3the applicable terms and conditions hereof, or (2) the transfer (in one or in a series of transactions) in excess of 49% (in the aggregate) of any equity ownership interests (I) directly in Borrower or in any SPE Component Entity, or (II) in any Restricted Party whose sole asset is a direct or indirect equity ownership interest in Borrower or in any SPE Component Entity, Lender shall receive a substantive non-consolidation opinion, which such opinion shall be provided by outside counsel acceptable to Lender and the Rating Agencies and shall otherwise be in form, scope and substance reasonably acceptable to Lender and acceptable to the Rating Agencies (such opinion, the “New Non-Consolidation Opinion”) addressing the relevant transfer and (G) such transfers shall not cause a Property Document Event.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents, Security Agreement (American Assets Trust, Inc.)
