Permitted Transfers of Equity Interests. (i) Notwithstanding the restrictions contained in Section 4.2.1 hereof or in Article 6 of the Security Instrument, the following transfers shall be permitted without Lender’s 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 member, partner or shareholder of a Restricted Party, (b) 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 (including, without limitation, transfers for estate planning purposes), (c) subject to clause (ii) below, the transfer (but not a pledge) of 100% of the indirect interests in Borrower to a newly-formed public or private REIT or such newly-formed public or private REIT’s newly-formed operating partnership (less any equity interests retained by the transferor) (each, a “Permitted Advised Entity Transferee”) (a “Permitted Advised Entity Transfer”), (d) a Permitted Pledge, (e) the merger, consolidation, or other business combination, or sale of all or substantially all of the assets of any direct or indirect owner of Sponsor, (f) the transfer, issuance, conversion and/or redemption of capital stock, membership interests and partnership interests, as applicable, in (I) prior to a Permitted Advised Entity Transfer, Ashford Hospitality Prime, Inc., Ashford Hospitality Prime Limited Partnership, Ashford Prime TRS Corporation, Ashford Prime OP General Partner LLC, or Ashford Prime OP Limited Partner LLC (or their respective permitted successors) and (II) after a Permitted Advised Entity Transfer, the Permitted Advised Entity Guarantor and any Person owning any direct and/or indirect interest in the Permitted Advised Entity Guarantor, (g) [intentionally omitted], or (h) the sale, transfer or issuance of shares of preferred or common stock in any Restricted Party that is a publicly traded entity, provided such shares of preferred or common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange; provided, however, with respect to the transfers listed in clauses (a), (b), (d), (e), and/or (f) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers (excluding any transfers contemplated by clause (f) above), (B) no such transfers shall result in a change in Control of Sponsor, Guarantor, or Affiliated Manager, (C) after giving effect to such transfers, at least one (1) Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property, (D) each Individual Property shall continue to be managed by a Qualified Manager, (E) in the case of the transfer of any direct equity ownership interests in Borrower, Operating Lessee or in any SPC Party, such transfers shall be conditioned upon continued compliance with the relevant provisions of Section 3.1.24 hereof, (F) such transfers shall be conditioned upon each of Borrower’s and Operating Lessee’s ability to, after giving effect to the equity transfer in question, (I) remake the representations contained herein relating to ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (and, upon Lender’s request, each of Borrower and Operating Lessee 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 entity or individual owning, directly or indirectly, 20% or more of the interests in Borrower and/or Operating Lessee, as applicable, as a result of such transfer), and (II) continue to comply with the covenants contained herein relating to ERISA matters and the Patriot Act, OFAC, and matters concerning Embargoed Persons, (G) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with Section 7.3 hereof (unless such Affiliate Manager has previously been paired with Borrower in an Insolvency Opinion or New Non-Consolidation Opinion previously delivered to Lender in connection with the Loan), or (2) the transfer of any equity ownership interests in any Restricted Party that results in any Person and its Affiliates that owned less than forty-nine percent (49%) prior to such transfer, owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower, Operating Lessee or any SPC Party after such transfer, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, (H) [intentionally omitted], (I) such transfers shall be expressly permitted pursuant to the terms (x) of the Franchise Agreement without Franchisor’s consent or such consent has been obtained and (y) the Management Agreement without Manager’s consent or such consent has been obtained, and (J) such transfers shall not trigger any right of first refusal, option to purchase or default under the REAs. (ii) Notwithstanding the foregoing or anything herein to the contrary, a Permitted Advised Entity Transfer shall only be permitted, provided, that the conditions set forth in Sections 8.2(i)(A) and 8.2(i)(C) through (J), above have been satisfied and, provided further, that the following conditions are met: (A) such Permitted Advised Entity Transferee shall be externally advised during the term of the Loan by Ashford, Inc. or its Affiliates, (B) if required by Lender, delivery of a Rating Agency Confirmation, (C) on the date of the Permitted Advised Entity Transfer, either Ashford Hospitality Prime Limited Partnership or Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property), (D) the Permitted Advised Entity Transferee or its operating partnership (the “Permitted Advised Entity Guarantor”) shall provide Lender with a recourse guaranty and environmental indemnity with respect to obligations and liabilities arising from and after the date of such Permitted Advised Entity Transfer in form and substance substantially the same as the Guaranty and the Environmental Indemnity Agreement; provided, that such replacement of the Guarantor is permitted by REMIC Requirements, and (E) such Permitted Advised Entity Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property. Notwithstanding the foregoing or anything contained herein or in any of the other Loan Documents to the contrary, following a Permitted Advised Entity Transfer, Ashford Hospitality Limited Partnership shall not be released from the Guaranty or the Environmental Indemnity Agreement until such time as Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property).
Appears in 1 contract
Permitted Transfers of Equity Interests. (i) Notwithstanding the restrictions contained in Section 4.2.1 hereof or hereof, in Article 6 of the Security InstrumentMortgage or in any other provision of the Loan Documents, the following transfers (but in no event pledges, except as specifically referenced below) shall be permitted without Lender’s consent (each, a “Permitted Equity Transfer”):consent:
(a) transfers of a transfer direct or indirect legal or beneficial interest in Borrower or any Restricted Party, provided after giving effect to each and every such transfer, (but not i) Sponsor, any Affiliate of Sponsor (or any successor by merger, consolidation or otherwise of Sponsor or any Affiliate of Sponsor) shall own, in the aggregate, at least ten percent (10%) of the direct or indirect equity ownership interest in Borrower and each SPE Party; and (ii) Borrower is Controlled by Sponsor or an Affiliate of Sponsor (or any successor by merger, consolidation or otherwise of Sponsor or an Affiliate of Sponsor);
(b) transfers of a pledgedirect or indirect legal or beneficial interest in Borrower or any Restricted Party, provided after giving effect to such transfers, (i) a Qualified Buyer shall own, in the aggregate, at least ten percent (10%) of the direct or indirect equity ownership interest in Borrower and each SPE Party; and (ii) Borrower is Controlled by such Qualified Buyer;
(c) transfers by devise or descent or by operation of law upon the death of a member, partner natural person;
(d) transfers of direct or shareholder of a Restricted Party, (b) 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 (including, without limitation, transfers for estate planning purposes), (c) subject to clause (ii) below, the transfer (but not a pledge) of 100% of the indirect interests in Borrower for estate planning purposes to the spouse, any lineal descendant, sibling or parent of such transferor, (including any of the foregoing by adoption), or to a newly-formed public trust for the benefit of any one or private REIT or more of such newly-formed public or private REIT’s newly-formed operating partnership (less any equity interests retained by the transferor) (each, a “Permitted Advised Entity Transferee”) (a “Permitted Advised Entity Transfer”), (d) a Permitted Pledge, Persons;
(e) the merger, consolidation, or other business combination, or sale of all or substantially all of the assets of any direct or indirect owner of Sponsor, (f) the transfer, issuance, conversion and/or redemption of capital stock, membership interests and partnership interests, as applicable, in (I) prior to a Permitted Advised Entity Transfer, Ashford Hospitality Prime, Inc., Ashford Hospitality Prime Limited Partnership, Ashford Prime TRS Corporation, Ashford Prime OP General Partner LLC, or Ashford Prime OP Limited Partner LLC (or their respective permitted successors) and (II) after a Permitted Advised Entity Transfer, the Permitted Advised Entity Guarantor and any Person owning any direct and/or indirect interest in the Permitted Advised Entity Guarantor, (g) [intentionally omitted], or (h) the sale, transfer or issuance of shares of preferred or common stock or other legal or beneficial ownership interests in Sponsor or in any Restricted Party Person holding a direct or indirect interest in Borrower that is a publicly traded entity, (a “Traded Security”), provided such shares of preferred or common stock are Traded Security is listed on the New York Stock Exchange or another nationally recognized stock exchangeexchange prior to the time of such sale, transfer or issuance, or any merger or consolidation of Sponsor or any such other Person that is a publicly traded entity;
(f) the pledge of any Person’s interests in any Restricted Party (other than a pledge of a direct interest in Borrower and/or any SPE Party) which is provided to secure any debt facility of such Person or other obligation or liability, whether or not of such Person; provided, that (i) such pledged interests do not represent a Controlling interest in Borrower or any SPE Party, and (ii) the aggregate percentage of indirect interests in Borrower or any SPE Party pledged pursuant to any such pledges, at any one time, shall not exceed a forty-nine percent (49%) indirect interest in Borrower;
(i) with respect to the transfer listed in clause (a) by Sponsor, any Affiliate of Sponsor (or any successor by merger, consolidation or otherwise of Sponsor or any Affiliate of Sponsor) or any SPE Party, no Event of Default shall have occurred and be continuing, (ii) with respect to the transfer listed in clause (b), (A) no Event of Default shall have occurred and be continuing, (B) Borrower shall pay Lender the applicable Conveyance Fee; provided, however, in no event shall a Conveyance Fee ever be due or payable in connection with a sale of Sponsor or a sale of all or substantially all of Sponsor’s assets or a transfer to or merger into a Qualified Buyer described under paragraph (f) of the definition of “Qualified Buyer,” and (C) to the extent the Sponsor no longer Controls, or owns a beneficial interest in, the Borrower, a substitute guarantor acceptable to Lender shall have assumed the Guaranty and Environmental Indemnity executed by Guarantor or executed a replacement guaranty satisfactory to Lender after which the existing Guarantor shall be released from the Guaranty with respect to any liability first accruing from and after the date thereof and such replacement guarantor shall be required to maintain a Net Worth of not less than $250,000,000 and Liquidity of not less than $15,000,000 during the term of the Loan (and Lender shall have received any legal opinions of counsel reasonably required to Lender in connection therewith), (iii) with respect to the transfers listed in clauses clause (a)) by Sponsor, any Affiliate of Sponsor (or any successor by merger, consolidation or otherwise of Sponsor or any Affiliate of Sponsor) or any SPE Party, or clause (b), (d), (e), and/or (f) above, (A) Lender shall receive not less than thirty (30) days days’ prior written notice of such transfers (excluding any transfers contemplated by clause (f) above)transfer, (B) no such transfers shall result in a change in Control of Sponsor, Guarantor, or Affiliated Manager, (C) after giving effect to such transfers, at least one (1) Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property, (D) each Individual Property shall continue to be managed by a Qualified Manager, (Eiv) in the case of the transfer of any direct equity ownership interests in Borrower, Operating Lessee Borrower or in any SPC SPE Party, such transfers shall be conditioned upon continued compliance by Borrower and any SPE Party with the relevant provisions of Section 3.1.24 hereof, (Fv) such transfers transfer shall be conditioned upon each of Borrower’s and Operating Lessee’s ability to, after giving effect to the equity transfer in question, (I) remake the representations contained herein relating to the DPA and CFIUS, ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (andcollectively, upon Lender’s request“Regulatory Reps”) and thereafter comply with the covenants contained herein relating to the DPA and CFIUS, each of ERISA matters and and the Patriot Act, OFAC and matters concerning Embargoed Persons, (vi) if such transfer is a KYC Transfer, (A) Borrower and Operating Lessee shall deliver to Lender (x) an Officer’s Certificate containing such (1) updated representations Regulatory Reps and (2) a certification that each KYC Transferee is an Acceptable Person, in each case effective as of the date of the consummation of the applicable equity transferKYC Transfer, and (y) searcheslien, bankruptcy, Patriot Act and litigation searches acceptable to Lender for such KYC Transferee, (B) such KYC Transferee has satisfied Lender, for any entity or individual owning, directly or indirectly, 20% or more of the interests in Borrower and/or Operating Lessee, as applicable, as a result of such transfer)’s “know your customer” requirements, and (IIC) continue Borrower shall deliver prior written notice of such proposed KYC Transfer to comply with Lender and such KYC Transfer shall not be deemed permitted hereunder until the covenants contained herein relating to ERISA matters and the Patriot Act, OFAC, and matters concerning Embargoed Personsrequirements of this clause (vi) are satisfied, (Gvii) in the case of (1) the prior to any transfer of the management of the Property which, after giving effect to a new Affiliated Manager in accordance with Section 7.3 hereof (unless such Affiliate Manager has previously been paired with Borrower in an Insolvency Opinion or New Non-Consolidation Opinion previously delivered to Lender in connection with the Loan)transfer, or (2) the transfer of any equity ownership interests in any Restricted Party that results in any Person and its Affiliates that owned less more than forty-nine percent (49%) prior to such transfer, owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower, Operating Lessee Borrower being transferred to a Person not owning at least forty-nine (49%) of the direct or any SPC Party after indirect interests in Borrower prior to such transfer, such transfers Borrower shall be conditioned upon delivery deliver to Lender of a New Non-Consolidation Opinion addressing such with respect to the proposed transfer, (H) [intentionally omitted], (I) such transfers which New Non-Consolidation Opinion shall be expressly permitted pursuant reasonably acceptable to Lender and, if required by Lender, the terms (x) of the Franchise Agreement without Franchisor’s consent or such consent has been obtained and (y) the Management Agreement without Manager’s consent or such consent has been obtainedRating Agencies, and (Jviii) such transfers transfer shall not trigger any right of first refusal, option to purchase or default under any of the REAs.
(ii) Notwithstanding the foregoing Property Documents or anything herein any Lease that has not expired or been waived prior to the contraryconsummation of transfer, a Permitted Advised Entity Transfer shall only be permitted, provided, that or any default under the conditions set forth Property Management Agreement which has not been waived in Sections 8.2(i)(A) and 8.2(i)(C) through (J), above have been satisfied and, provided further, that writing by Manager prior to the following conditions are met: (A) such Permitted Advised Entity Transferee shall be externally advised during the term of the Loan by Ashford, Inc. or its Affiliates, (B) if required by Lender, delivery of a Rating Agency Confirmation, (C) on the date of the Permitted Advised Entity Transfer, either Ashford Hospitality Prime Limited Partnership or Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property), (D) the Permitted Advised Entity Transferee or its operating partnership (the “Permitted Advised Entity Guarantor”) shall provide Lender with a recourse guaranty and environmental indemnity with respect to obligations and liabilities arising from and after the date consummation of such Permitted Advised Entity Transfer transfer. Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of Lender incurred in form connection with Lender’s review of any transfer or proposed transfer, including, without limitation, attorneys’ fees and substance substantially expenses whether or not such transfer is actually consummated. In connection with any transfer consummated in accordance with the same as terms of this Section 8.2, the Guaranty and the Environmental Indemnity Agreement; provided, organizational documents of any Person that such replacement of the Guarantor is permitted by REMIC Requirements, and (E) such Permitted Advised Entity Guarantor shall (I) own at least owns a 51% direct or indirect equity ownership interest in each Borrower may be amended to reflect such transfer so long as any such amendment does not violate the terms and provisions of BorrowerSection 3.1.24 hereof. Notwithstanding anything to the contrary contained herein, Operating Lessee, in no event shall any transferee of any interest in Borrower (or any holder of a direct or indirect beneficial interest in any such transferee other than shareholders in a publicly traded entity which owns a direct or indirect beneficial interest in such transferee) be a Prohibited Entity and any SPC Party; transfer or purported transfer of any interest in Borrower which would result in Borrower (IIor any holder of a direct or indirect beneficial interest in Borrower other than shareholders in a publicly traded entity which owns a direct or indirect beneficial interest in Borrower) Control Borrower, Operating Lessee, being a Prohibited Entity is hereby prohibited and any SPC Party; and (III) control the day-to-day operation of the Property. Notwithstanding the foregoing or anything contained herein or in any of the other Loan Documents to the contrary, following a Permitted Advised Entity Transfer, Ashford Hospitality Limited Partnership shall not be released from the Guaranty or the Environmental Indemnity Agreement until such time as Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property)void ab initio.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Permitted Transfers of Equity Interests. (iI) Notwithstanding the restrictions contained in Section 4.2.1 hereof hereof, in Article 5 of the Pledge Agreement or in Article 6 any other provision of the Security InstrumentLoan Documents, the following transfers (but in no event pledges except as expressly permitted herein) shall be permitted transfers without the consent of Agent or any Lender or the payment of any transfer fee or other charges (but subject to Borrower’s or the applicable transferee’s payment of Lender’s consent reasonable, out-of-pocket costs and expenses actually incurred in connection with such transfer), and the same shall not trigger an Event of Default or acceleration of the Debt, provided that, all applicable conditions specified below are complied with by Borrower (each, each a “Permitted Equity Transfer”):
(a) a transfer transfers (but not a pledgepledges) by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, (b) 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 any Restricted Party (including, without limitation, transfers for estate planning purposeswhether to current holders of such interests or to Persons who are not holders of such interests as of the date hereof), ;
(cb) subject to clause (iiII) below, the transfer (but not a an encumbrance or pledge) of 100% of the indirect interests in Borrower or Mortgage Borrower to a newly-formed public or private REIT or such newly-formed public or private REIT’s newly-formed operating partnership (less any equity interests retained by the transferor) (each, a “Permitted Advised Entity REIT Transferee”) (a “Permitted Advised Entity Transfer”), (d) a Permitted Pledge, (e) provided that the merger, consolidation, or other business combination, or sale of all or substantially all of the assets shares of any direct or indirect owner of Sponsor, (f) the transfer, issuance, conversion and/or redemption of capital stock, membership interests and partnership interests, as applicable, in (I) prior to a Permitted Advised Entity Transfer, Ashford Hospitality Prime, Inc., Ashford Hospitality Prime Limited Partnership, Ashford Prime TRS Corporation, Ashford Prime OP General Partner LLC, or Ashford Prime OP Limited Partner LLC (or their respective permitted successors) and (II) after a Permitted Advised Entity Transfer, the Permitted Advised Entity Guarantor and any Person owning any direct and/or indirect interest in the Permitted Advised Entity Guarantor, (g) [intentionally omitted], or (h) the sale, transfer or issuance of shares of preferred or common stock in any Restricted Party that is a publicly traded entity, provided such shares of preferred or common stock public REIT are listed on the New York Stock Exchange or another nationally recognized stock exchange; provided, however, with respect to the transfers listed in clauses exchange (a), (b), (d), (e), and/or (f) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers (excluding any transfers contemplated by clause (f) above), (B) no such transfers shall result in a change in Control of Sponsor, Guarantor, or Affiliated Manager, (C) after giving effect to such transfers, at least one (1) Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property, (D) each Individual Property shall continue to be managed by a Qualified Manager, (E) in the case of the transfer of any direct equity ownership interests in Borrower, Operating Lessee or in any SPC Party, such transfers shall be conditioned upon continued compliance with the relevant provisions of Section 3.1.24 hereof, (F) such transfers shall be conditioned upon each of Borrower’s and Operating Lessee’s ability to, after giving effect to the equity transfer in question, (I) remake the representations contained herein relating to ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (and, upon Lender’s request, each of Borrower and Operating Lessee 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 entity or individual owning, directly or indirectly, 20% or more of the interests in Borrower and/or Operating Lessee, as applicable, as a result of such transfer), and (II) continue to comply with the covenants contained herein relating to ERISA matters and the Patriot Act, OFAC, and matters concerning Embargoed Persons, (G) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with Section 7.3 hereof (unless such Affiliate Manager has previously been paired with Borrower in an Insolvency Opinion or New Non-Consolidation Opinion previously delivered to Lender in connection with the Loan), or (2) the transfer of any equity ownership interests in any Restricted Party that results in any Person and its Affiliates that owned less than forty-nine percent (49%) prior to such transfer, owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower, Operating Lessee or any SPC Party after such transfer, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, (H) [intentionally omitted], (I) such transfers shall be expressly permitted pursuant to the terms (x) of the Franchise Agreement without Franchisor’s consent or such consent has been obtained and (y) the Management Agreement without Manager’s consent or such consent has been obtained, and (J) such transfers shall not trigger any right of first refusal, option to purchase or default under the REAs.
(ii) Notwithstanding the foregoing or anything herein to the contrary, a Permitted Advised Entity Transfer shall only be permitted, provided, that the conditions set forth in Sections 8.2(i)(A) and 8.2(i)(C) through (J), above have been satisfied and, provided further, that the following conditions are met: (A) such Permitted Advised Entity Transferee shall be externally advised during the term of the Loan by Ashford, Inc. or its Affiliates, (B) if required by Lender, delivery of a Rating Agency Confirmation, (C) on the date of the Permitted Advised Entity Transfer, either Ashford Hospitality Prime Limited Partnership or Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property), (D) the Permitted Advised Entity Transferee or its operating partnership (the “Permitted Advised Entity GuarantorREIT Transfer”) shall provide Lender with a recourse guaranty and environmental indemnity with respect to obligations and liabilities arising from and after the date of such Permitted Advised Entity Transfer in form and substance substantially the same as the Guaranty and the Environmental Indemnity Agreement; provided, that such replacement of the Guarantor is permitted by REMIC Requirements, and (E) such Permitted Advised Entity Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property. Notwithstanding the foregoing or anything contained herein or in any of the other Loan Documents to the contrary, following a Permitted Advised Entity Transfer, Ashford Hospitality Limited Partnership shall not be released from the Guaranty or the Environmental Indemnity Agreement until such time as Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property).;
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Black Creek Diversified Property Fund Inc.)
Permitted Transfers of Equity Interests. (i) Notwithstanding the restrictions contained in Section 4.2.1 hereof or hereof, in Article 6 of the Security InstrumentMortgage or in any other provision of the Loan Documents, the following transfers (but in no event pledges) shall be permitted without Lender’s consent (each, a “Permitted Equity Transfer”):consent:
(a) transfers of a transfer direct or indirect beneficial interest in Borrower or any Restricted Party, provided after giving effect to each and every such transfer, (but not i) Sponsor, any Affiliate of Sponsor (or any successor by merger, consolidation or otherwise of Sponsor or any Affiliate of Sponsor) shall own, in the aggregate, at least twenty percent (20%) of the direct or indirect equity ownership interest in Borrower and each SPE Party; and (ii) Borrower is Controlled by Sponsor or an Affiliate of Sponsor (or any successor by merger, consolidation or otherwise of Sponsor or an Affiliate of Sponsor);
(b) transfers of a pledgedirect or indirect beneficial interest in Borrower or any Restricted Party, provided after giving effect to such transfers, (i) a Qualified Buyer shall own, in the aggregate, at least twenty percent (20%) of the direct or indirect equity ownership interest in Borrower and each SPE Party; and (ii) Borrower is Controlled by such Qualified Buyer;
(c) transfers by devise or descent or by operation of law upon the death of a member, partner natural person;
(d) transfers of direct or shareholder of a Restricted Party, (b) 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 (including, without limitation, transfers for estate planning purposes), (c) subject to clause (ii) below, the transfer (but not a pledge) of 100% of the indirect interests in Borrower for estate planning purposes to the spouse, any lineal descendant, sibling or parent of such transferor, (including any of the foregoing by adoption), or to a newly-formed public trust for the benefit of any one or private REIT or more of such newly-formed public or private REIT’s newly-formed operating partnership (less any equity interests retained by the transferor) (each, a “Permitted Advised Entity Transferee”) (a “Permitted Advised Entity Transfer”), (d) a Permitted Pledge, Persons; or
(e) the merger, consolidation, or other business combination, or sale of all or substantially all of the assets of any direct or indirect owner of Sponsor, (f) the transfer, issuance, conversion and/or redemption of capital stock, membership interests and partnership interests, as applicable, in (I) prior to a Permitted Advised Entity Transfer, Ashford Hospitality Prime, Inc., Ashford Hospitality Prime Limited Partnership, Ashford Prime TRS Corporation, Ashford Prime OP General Partner LLC, or Ashford Prime OP Limited Partner LLC (or their respective permitted successors) and (II) after a Permitted Advised Entity Transfer, the Permitted Advised Entity Guarantor and any Person owning any direct and/or indirect interest in the Permitted Advised Entity Guarantor, (g) [intentionally omitted], or (h) the sale, transfer or issuance of shares of preferred or common stock or other beneficial ownership interests in Sponsor or in any Restricted Party Person holding a direct or indirect interest in Borrower that is a publicly traded entity, (a “Traded Security”), provided such shares of preferred or common stock are Traded Security is listed on the New York Stock Exchange or another nationally recognized stock exchangeexchange (a “Recognized Exchange”) prior to the time of such sale, transfer or issuance, or any merger or consolidation of Sponsor or any such other Person that is a publicly traded entity. provided: (i) with respect to the transfer listed in clause (a), no Event of Default shall have occurred and be continuing, (ii) with respect to the transfer listed in clause (b), (A) no Event of Default shall have occurred and be continuing, (B) Borrower shall pay Lender the applicable Conveyance Fee; provided, however, in no event shall a Conveyance Fee ever be due or payable in connection with a sale of Sponsor or a sale of all or substantially all of Sponsor’s assets or a transfer to or merger into a Qualified Buyer described under paragraph (f) of the definition of “Qualified Buyer,” and (C) to the extent the Sponsor no longer Controls, or owns a beneficial interest in, the Borrower, a substitute guarantor acceptable to Lender shall have assumed the Guaranty and Environmental Indemnity executed by Guarantor or executed a replacement guaranty satisfactory to Lender after which the existing Guarantor shall be released from the Guaranty with respect to any liability first accruing from and after the date thereof and such replacement guarantor shall be required to maintain a Net Worth of not less than $250,000,000 and Liquidity of not less than $15,000,000 during the term of the Loan (and Lender shall have received any legal opinions of counsel reasonably required to Lender in connection therewith), (iii) with respect to the transfers listed in clauses (a), ) and (b), (d), (e), and/or (f) above, (A) Lender shall receive not less than thirty (30) days days’ prior written notice of such transfers (excluding any transfers contemplated by clause (f) above)transfer, (B) no such transfers shall result in a change in Control of Sponsor, Guarantor, or Affiliated Manager, (C) after giving effect to such transfers, at least one (1) Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property, (D) each Individual Property shall continue to be managed by a Qualified Manager, (Eiv) in the case of the transfer of any direct equity ownership interests in Borrower, Operating Lessee Borrower or in any SPC SPE Party, such transfers shall be conditioned upon continued compliance by Borrower and any SPE Party with the relevant provisions of Section 3.1.24 hereof, (Fv) such transfers shall be conditioned upon each of Borrower’s and Operating Lessee’s ability to, after giving effect to the equity transfer in question, (IA) remake the representations contained herein relating to the DPA and CFIUS, ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (and, upon Lender’s request, each of Borrower and Operating Lessee 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) searcheslien, bankruptcy, Patriot Act and litigation searches acceptable to Lender, Lender for any entity or individual owning, directly or indirectly, 20% ten percent (10%) or more of the interests in Borrower and/or Operating Lessee, as applicable, as a result of such transfer), (B) certify to Lender that each Person owning directly or indirectly ten percent (10%) of the interests in the Borrower as a result of such transfer is an Acceptable Person, and (IIC) continue to comply with the covenants contained herein relating to the DPA and CFIUS, ERISA matters and the Patriot ActPrescribed Laws, OFACit being agreed that if such transfer will trigger Lender’s right to request searches and certifications, Borrower shall deliver prior notice of such transfer to Lender and matters concerning Embargoed Personssuch transfer shall not be deemed permitted hereunder until such search results and certifications are received and approved by Lender, (Gvi) in the case of (1) the prior to any transfer of the management of the Property which, after giving effect to a new Affiliated Manager in accordance with Section 7.3 hereof (unless such Affiliate Manager has previously been paired with Borrower in an Insolvency Opinion or New Non-Consolidation Opinion previously delivered to Lender in connection with the Loan)transfer, or (2) the transfer of any equity ownership interests in any Restricted Party that results in any Person and its Affiliates that owned less more than forty-nine percent (49%) prior to such transfer, owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower, Operating Lessee Borrower being transferred to a Person not owning at least forty-nine (49%) of the direct or any SPC Party after indirect interests in Borrower prior to such transfer, such transfers Borrower shall be conditioned upon delivery deliver to Lender of a New Non-Consolidation Opinion addressing such with respect to the proposed transfer, (H) [intentionally omitted], (I) such transfers which New Non-Consolidation Opinion shall be expressly permitted pursuant reasonably acceptable to Lender and, if required by Lender, the terms (x) of the Franchise Agreement without Franchisor’s consent or such consent has been obtained and (y) the Management Agreement without Manager’s consent or such consent has been obtainedRating Agencies, and (Jvii) such transfers transfer shall not trigger any right of first refusal, option to purchase or default under the REAs.
(ii) Notwithstanding the foregoing any Lease that has not expired or anything herein been waived prior to the contraryconsummation of transfer, a Permitted Advised Entity Transfer shall only be permitted, provided, that or any default under the conditions set forth Property Management Agreement which has not been waived in Sections 8.2(i)(A) and 8.2(i)(C) through (J), above have been satisfied and, provided further, that writing by Manager prior to the following conditions are met: (A) such Permitted Advised Entity Transferee shall be externally advised during the term of the Loan by Ashford, Inc. or its Affiliates, (B) if required by Lender, delivery of a Rating Agency Confirmation, (C) on the date of the Permitted Advised Entity Transfer, either Ashford Hospitality Prime Limited Partnership or Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property), (D) the Permitted Advised Entity Transferee or its operating partnership (the “Permitted Advised Entity Guarantor”) shall provide Lender with a recourse guaranty and environmental indemnity with respect to obligations and liabilities arising from and after the date consummation of such Permitted Advised Entity Transfer transfer. Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of Lender incurred in form connection with Lender’s review of any transfer or proposed transfer, including, without limitation, attorneys’ fees and substance substantially expenses whether or not such transfer is actually consummated. In connection with any transfer consummated in accordance with the same as terms of this Section 8.2, the Guaranty and the Environmental Indemnity Agreement; provided, organizational documents of any Person that such replacement of the Guarantor is permitted by REMIC Requirements, and (E) such Permitted Advised Entity Guarantor shall (I) own at least owns a 51% direct or indirect equity ownership interest in each Borrower may be amended to reflect such transfer so long as any such amendment does not violate the terms and provisions of BorrowerSection 3.1.24 hereof. Notwithstanding anything to the contrary contained herein, Operating Lessee, in no event shall any transferee of any interest in Borrower (or any holder of a direct or indirect beneficial interest in any such transferee other than shareholders in a publicly traded entity which owns a direct or indirect beneficial interest in such transferee) be a Prohibited Entity and any SPC Party; transfer or purported transfer of any interest in Borrower which would result in Borrower (IIor any holder of a direct or indirect beneficial interest in Borrower other than shareholders in a publicly traded entity which owns a direct or indirect beneficial interest in Borrower) Control Borrower, Operating Lessee, being a Prohibited Entity is hereby prohibited and any SPC Party; and (III) control the day-to-day operation of the Property. Notwithstanding the foregoing or anything contained herein or in any of the other Loan Documents to the contrary, following a Permitted Advised Entity Transfer, Ashford Hospitality Limited Partnership shall not be released from the Guaranty or the Environmental Indemnity Agreement until such time as Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property)void ab initio.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Permitted Transfers of Equity Interests. (iI) Notwithstanding the restrictions contained in Section 4.2.1 hereof or hereof, in Article 6 of the Security InstrumentMortgage or in any other provision of the Loan Documents, the following transfers (but in no event pledges except as expressly permitted herein) shall be permitted transfers without the consent of Agent or any Lender or the payment of any transfer fee or other charges (but subject to Borrower’s or the applicable transferee’s payment of Lender’s consent reasonable, out-of-pocket costs and expenses actually incurred in connection with such transfer), and the same shall not trigger an Event of Default or acceleration of the Debt, provided that, all applicable conditions specified below are complied with by Borrower (each, each a “Permitted Equity Transfer”):
(a) a transfer transfers (but not a pledgepledges) by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, (b) 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 any Restricted Party (including, without limitation, transfers for estate planning purposeswhether to current holders of such interests or to Persons who are not holders of such interests as of the date hereof), ;
(cb) subject to clause (iiII) below, the transfer (but not a an encumbrance or pledge) of 100% of the indirect interests in Borrower to a newly-formed public or private REIT or such newly-formed public or private REIT’s newly-formed operating partnership (less any equity interests retained by the transferor) (each, a “Permitted Advised Entity REIT Transferee”) provided that the shares of any public REIT are listed on the New York Stock Exchange or another nationally recognized stock exchange (a “Permitted Advised Entity REIT Transfer”), ;
(c) any Permitted Pledge;
(d) a Permitted Pledge, (e) the any transfer by operation of law resulting from merger, consolidation, or other business combinationnon-bankruptcy reorganization, or sale of all or substantially all of Black Creek Fund and/or Black Creek Operating Partnership;
(e) the assets of any direct or indirect owner of Sponsor, (f) the transfer, issuance, conversion and/or redemption of capital stock, membership partnership interests and partnership interests, as applicable, in Black Creek Operating Partnership;
(If) prior to transfers by devise or descent or by operation of law upon the death of a Permitted Advised Entity Transfer, Ashford Hospitality Prime, Inc., Ashford Hospitality Prime Limited Partnership, Ashford Prime TRS Corporation, Ashford Prime OP General Partner LLC, or Ashford Prime OP Limited Partner LLC (or their respective permitted successors) and (II) after a Permitted Advised Entity Transfer, the Permitted Advised Entity Guarantor and any Person owning any direct and/or indirect interest in the Permitted Advised Entity Guarantor, natural person;
(g) [intentionally omitted]transfers (but not pledges other than any Permitted Pledge) of direct or indirect interests in Borrower for estate planning purposes to the spouse, any lineal descendant, sibling or parent of such transferor, (including any of the foregoing by adoption), or to a trust for the benefit of any one or more of such Persons; or
(h) the any transfer (including a pledge), sale, transfer or issuance of shares of preferred or common stock in any Restricted Party that is a publicly traded entity, provided such shares of preferred or common stock are listed on the New York Stock Exchange or another nationally recognized stock exchangeexchange (a “Publicly Traded Restricted Party”);
(i) any transfer (including a pledge), sale, or issuance of shares of preferred or common stock 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 (a “Publicly Registered Restricted Party”);
(j) transfers (including a pledge) of the stock, partnership interests or membership interests (as the case may be) in any Person that owns a direct or indirect interest in any Publicly Traded Restricted Party and/or Publicly Registered Restricted Party; provided that, clauses (h), (i) and (j) 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, howeverfurther, that, with respect to the transfers listed in clauses (a), (bc), (d), (e), and/or (f) and (g) above, (Ai) Lender no Event of Default shall have occurred and be continuing (provided that, this clause (i) shall not apply to (x) the transfers referred to in clause (e) above by any Non-Dividend Limited Partner or any direct or indirect interests in any Non-Dividend Limited Partner (including, without limitation, any redemptions of interest in Black Creek Operating Partnership to any such Non-Dividend Limited Partner) or (y) the transfer, sale and/or pledge of any direct or indirect interest in any Restricted Party that is a publicly registered non-listed real estate investment trust by any Person that (1) owns less than a 10% indirect interest in Borrower, (2) is not an Affiliate of Borrower and (3) does not Control Borrower or any SPE Party), (ii) Agent shall receive not less than thirty (30) days days’ prior written notice of such transfers transfer (excluding provided that, Borrower shall not be obligated to give Agent notice of any transfers contemplated by clause transfer of less than a 10% direct or indirect interest in Borrower (fincluding, without limitation, any redemptions of interest in Black Creek Operating Partnership that are less than a 10% direct or indirect interest in Borrower) aboveunless such interest is a Controlling interest and Borrower shall not be obligated to give prior notice of any transfer if such prior notice would violate applicable law (in which case, Borrower shall give notice within five (5) days of such transfer)), (Biii) no such transfers transfer shall result in a change of Control in Control of Sponsor, Guarantor, or Affiliated Manager, (Civ) after giving effect to such transfers, at least one (1) Sponsor Black Creek Fund shall (Ix) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, Borrower and any SPC SPE Party; (IIy) Control Borrower, Operating Lessee, Borrower and any SPC SPE Party; and (IIIz) control the day-to-day operation of the Property, (D) each Individual Property shall continue to be managed by a Qualified Manager, (Ev) in the case of the transfer of any direct equity ownership interests in Borrower, Operating Lessee Borrower or in any SPC SPE Party, such transfers shall be conditioned upon continued compliance with the relevant provisions of Section 3.1.24 hereof, (Fvi) such transfers shall be conditioned upon each of Borrower’s and Operating Lessee’s ability to, after giving effect to the equity transfer in question, (IA) remake the representations contained herein relating to ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (and, upon LenderAgent’s request, each of Borrower and Operating Lessee shall deliver to Lender Agent (x) an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer, and (y) searcheslien, bankruptcy, Patriot Act and litigation searches acceptable to Lender, Agent for any entity or individual owning, directly or indirectly, 20% ten percent (10%) or more of the interests in Borrower and/or Operating Lessee, as applicable, as a result of such transfer), (B) certify to Agent that each Person owning directly or indirectly ten percent (10%) of the interests in the Borrower as a result of such transfer is an Acceptable Person, and (IIC) continue to comply with the covenants contained herein relating to ERISA matters and the Patriot ActPrescribed Laws, OFACit being agreed that if such transfer will trigger Agent’s right to request searches or certifications, Borrower shall deliver prior notice of such transfer to Agent and matters concerning Embargoed Personssuch transfer shall not be deemed permitted hereunder until such search results and certifications are received and approved by Agent, (Gvii) in the case of (1) the prior to any transfer of the management of the Property which, after giving effect to a new Affiliated Manager in accordance with Section 7.3 hereof (unless such Affiliate Manager has previously been paired with Borrower in an Insolvency Opinion or New Non-Consolidation Opinion previously delivered to Lender in connection with the Loan)transfer, or (2) the transfer of any equity ownership interests in any Restricted Party that results in any Person and its Affiliates that owned less more than forty-nine percent (49%) prior to such transfer, owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower, Operating Lessee Borrower being transferred to a Person not owning at least forty-nine (49%) of the direct or any SPC Party after indirect interests in Borrower prior to such transfer, such transfers Borrower shall be conditioned upon delivery deliver to Lender of Agent a New Non-Consolidation Opinion addressing such with respect to the proposed transfer, (H) [intentionally omitted], (I) such transfers which New Non-Consolidation Opinion shall be expressly permitted pursuant reasonably acceptable to Agent and, if required by Agent, the terms (x) of the Franchise Agreement without Franchisor’s consent or such consent has been obtained and (y) the Management Agreement without Manager’s consent or such consent has been obtainedRating Agencies, and (Jviii) such transfers transfer shall not trigger any right of first refusal, option to purchase or default under the REAs.
(ii) Notwithstanding Reciprocal Easement Agreement or the foregoing Ground Lease that has not expired or anything herein been waived in writing prior to the contrary, a Permitted Advised Entity Transfer shall only be permitted, provided, that the conditions set forth in Sections 8.2(i)(A) and 8.2(i)(C) through (J), above have been satisfied and, provided further, that the following conditions are met: (A) such Permitted Advised Entity Transferee shall be externally advised during the term of the Loan by Ashford, Inc. or its Affiliates, (B) if required by Lender, delivery of a Rating Agency Confirmation, (C) on the date of the Permitted Advised Entity Transfer, either Ashford Hospitality Prime Limited Partnership or Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property), (D) the Permitted Advised Entity Transferee or its operating partnership (the “Permitted Advised Entity Guarantor”) shall provide Lender with a recourse guaranty and environmental indemnity with respect to obligations and liabilities arising from and after the date consummation of such Permitted Advised Entity Transfer transfer, any default under the Ground Lease or Management Agreement which has not been waived in form and substance substantially writing by the same ground lessor or Manager, as the Guaranty and the Environmental Indemnity Agreement; providedapplicable, that such replacement of the Guarantor is permitted by REMIC Requirements, and (E) such Permitted Advised Entity Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property. Notwithstanding the foregoing or anything contained herein or in any of the other Loan Documents prior to the contraryconsummation of such transfer. Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of Agent incurred in connection with Agent’s review of any transfer or proposed transfer, following a Permitted Advised Entity Transferincluding, Ashford Hospitality Limited Partnership shall not be released from the Guaranty or the Environmental Indemnity Agreement until such time as Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) without limitation, reasonable attorneys’ fees and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property)expenses.
Appears in 1 contract
Samples: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Permitted Transfers of Equity Interests. (iI) Notwithstanding the restrictions contained in Section 4.2.1 hereof or hereof, in Article 6 of the Security InstrumentMortgage or in any other provision of the Loan Documents, the following transfers (but in no event pledges except as expressly permitted herein) shall be permitted transfers without the consent of Agent or any Lender or the payment of any transfer fee or other charges (but subject to Borrower’s or the applicable transferee’s payment of Lender’s consent reasonable, out-of-pocket costs and expenses actually incurred in connection with such transfer), and the same shall not trigger an Event of Default or acceleration of the Debt, provided that, all applicable conditions specified below are complied with by Borrower (each, each a “Permitted Equity Transfer”):
(a) a transfer transfers (but not a pledgepledges) by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, (b) 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 any Restricted Party (including, without limitation, transfers for estate planning purposeswhether to current holders of such interests or to Persons who are not holders of such interests as of the date hereof), ;
(cb) subject to clause (iiII) below, the transfer (but not a an encumbrance or pledge) of 100% of the indirect interests in Borrower to a newly-formed public or private REIT or such newly-formed public or private REIT’s newly-formed operating partnership (less any equity interests retained by the transferor) (each, a “Permitted Advised Entity REIT Transferee”) provided that the shares of any public REIT are listed on the New York Stock Exchange or another nationally recognized stock exchange (a “Permitted Advised Entity REIT Transfer”), ;
(c) any Permitted Pledge;
(d) a Permitted Pledge, (e) the any transfer by operation of law resulting from merger, consolidation, or other business combinationnon-bankruptcy reorganization, or sale of all or substantially all of Black Creek Fund and/or Black Creek Operating Partnership;
(e) the assets of any direct or indirect owner of Sponsor, (f) the transfer, issuance, conversion and/or redemption of capital stock, membership partnership interests and partnership interests, as applicable, in Black Creek Operating Partnership;
(If) prior to transfers by devise or descent or by operation of law upon the death of a Permitted Advised Entity Transfer, Ashford Hospitality Prime, Inc., Ashford Hospitality Prime Limited Partnership, Ashford Prime TRS Corporation, Ashford Prime OP General Partner LLC, or Ashford Prime OP Limited Partner LLC (or their respective permitted successors) and (II) after a Permitted Advised Entity Transfer, the Permitted Advised Entity Guarantor and any Person owning any direct and/or indirect interest in the Permitted Advised Entity Guarantor, natural person;
(g) [intentionally omitted]transfers (but not pledges other than any Permitted Pledge) of direct or indirect interests in Borrower for estate planning purposes to the spouse, any lineal descendant, sibling or parent of such transferor, (including any of the foregoing by adoption), or to a trust for the benefit of any one or more of such Persons; or
(h) the any transfer (including a pledge), sale, transfer or issuance of shares of preferred or common stock in any Restricted Party that is a publicly traded entity, provided such shares of preferred or common stock are listed on the New York Stock Exchange or another nationally recognized stock exchangeexchange (a “Publicly Traded Restricted Party”);
(i) any transfer (including a pledge), sale, or issuance of shares of preferred or common stock 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 (a “Publicly Registered Restricted Party”);
(j) transfers (including a pledge) of the stock, partnership interests or membership interests (as the case may be) in any Person that owns a direct or indirect interest in any Publicly Traded Restricted Party and/or Publicly Registered Restricted Party; provided that, clauses (h), (i) and (j) 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));
(k) any Mezzanine Foreclosure; provided, howeverfurther, that, with respect to the transfers listed in clauses (a), (bc), (d), (e), and/or (f), (g) and (k) above, (Ai) Lender no Event of Default shall have occurred and be continuing (provided that, this clause (i) shall not apply to (x) the transfers referred to in clause (e) above by any Non-Dividend Limited Partner or any direct or indirect interests in any Non-Dividend Limited Partner (including, without limitation, any redemptions of interest in Black Creek Operating Partnership to any such Non-Dividend Limited Partner), (y) the transfer, sale and/or pledge of any direct or indirect interest in any Restricted Party that is a publicly registered non-listed real estate investment trust by any Person that (1) owns less than a 10% indirect interest in Borrower, (2) is not an Affiliate of Borrower and (3) does not Control Borrower or any SPE Party, or (z) the transfer referred to in clause (k) above), (ii) Agent shall receive not less than thirty (30) days days’ prior written notice of such transfers transfer (excluding provided that, Borrower shall not be obligated to give Agent notice of any transfers contemplated by clause transfer of less than a 10% direct or indirect interest in Borrower (fincluding, without limitation, any redemptions of interest in Black Creek Operating Partnership that are less than a 10% direct or indirect interest in Borrower) aboveunless such interest is a Controlling interest and Borrower shall not be obligated to give prior notice of any transfer if such prior notice would violate applicable law (in which case, Borrower shall give notice within five (5) days of such transfer)), (Biii) no such transfers transfer shall result in a change of Control in Control of Sponsor, Guarantor, or Affiliated Manager, (Civ) after giving effect to such transfers, at least one (1) Sponsor Black Creek Fund shall (Ix) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, Borrower and any SPC SPE Party; (IIy) Control Borrower, Operating Lessee, Borrower and any SPC SPE Party; and (IIIz) control the day-to-day operation of the Property, (D) each Individual Property shall continue to be managed by a Qualified Manager, (Ev) in the case of the transfer of any direct equity ownership interests in Borrower, Operating Lessee Borrower or in any SPC SPE Party, such transfers shall be conditioned upon continued compliance with the relevant provisions of Section 3.1.24 hereof, (Fvi) such transfers shall be conditioned upon each of Borrower’s and Operating Lessee’s ability to, after giving effect to the equity transfer in question, (IA) remake the representations contained herein relating to ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (and, upon LenderAgent’s request, each of Borrower and Operating Lessee shall deliver to Lender Agent (x) an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transfer, and (y) searcheslien, bankruptcy, Patriot Act and litigation searches acceptable to Lender, Agent for any entity or individual owning, directly or indirectly, 20% ten percent (10%) or more of the interests in Borrower and/or Operating Lessee, as applicable, as a result of such transfer), (B) certify to Agent that each Person owning directly or indirectly ten percent (10%) of the interests in the Borrower as a result of such transfer is an Acceptable Person, and (IIC) continue to comply with the covenants contained herein relating to ERISA matters and the Patriot ActPrescribed Laws, OFACit being agreed that if such transfer will trigger Agent’s right to request searches or certifications, Borrower shall deliver prior notice of such transfer to Agent and matters concerning Embargoed Personssuch transfer shall not be deemed permitted hereunder until such search results and certifications are received and approved by Agent, (Gvii) in the case of (1) the prior to any transfer of the management of the Property which, after giving effect to a new Affiliated Manager in accordance with Section 7.3 hereof (unless such Affiliate Manager has previously been paired with Borrower in an Insolvency Opinion or New Non-Consolidation Opinion previously delivered to Lender in connection with the Loan)transfer, or (2) the transfer of any equity ownership interests in any Restricted Party that results in any Person and its Affiliates that owned less more than forty-nine percent (49%) prior to such transfer, owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower, Operating Lessee Borrower being transferred to a Person not owning at least forty-nine (49%) of the direct or any SPC Party after indirect interests in Borrower prior to such transfer, such transfers Borrower shall be conditioned upon delivery deliver to Lender of Agent a New Non-Consolidation Opinion addressing such with respect to the proposed transfer, (H) [intentionally omitted], (I) such transfers which New Non-Consolidation Opinion shall be expressly permitted pursuant reasonably acceptable to Agent and, if required by Agent, the terms (x) of the Franchise Agreement without Franchisor’s consent or such consent has been obtained and (y) the Management Agreement without Manager’s consent or such consent has been obtainedRating Agencies, and (Jviii) such transfers transfer shall not trigger any right of first refusal, option to purchase or default under the REAs.
(ii) Notwithstanding Reciprocal Easement Agreement or the foregoing Ground Lease that has not expired or anything herein been waived in writing prior to the contrary, a Permitted Advised Entity Transfer shall only be permitted, provided, that the conditions set forth in Sections 8.2(i)(A) and 8.2(i)(C) through (J), above have been satisfied and, provided further, that the following conditions are met: (A) such Permitted Advised Entity Transferee shall be externally advised during the term of the Loan by Ashford, Inc. or its Affiliates, (B) if required by Lender, delivery of a Rating Agency Confirmation, (C) on the date of the Permitted Advised Entity Transfer, either Ashford Hospitality Prime Limited Partnership or Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property), (D) the Permitted Advised Entity Transferee or its operating partnership (the “Permitted Advised Entity Guarantor”) shall provide Lender with a recourse guaranty and environmental indemnity with respect to obligations and liabilities arising from and after the date consummation of such Permitted Advised Entity Transfer transfer, any default under the Ground Lease or Management Agreement which has not been waived in form and substance substantially writing by the same ground lessor or Manager, as the Guaranty and the Environmental Indemnity Agreement; providedapplicable, that such replacement of the Guarantor is permitted by REMIC Requirements, and (E) such Permitted Advised Entity Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property. Notwithstanding the foregoing or anything contained herein or in any of the other Loan Documents prior to the contraryconsummation of such transfer. Borrower shall pay all reasonable third-party out-of-pocket costs and expenses of Agent incurred in connection with Agent’s review of any transfer or proposed transfer, following a Permitted Advised Entity Transferincluding, Ashford Hospitality Limited Partnership shall not be released from the Guaranty or the Environmental Indemnity Agreement until such time as Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) without limitation, reasonable attorneys’ fees and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property)expenses.
Appears in 1 contract
Samples: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Permitted Transfers of Equity Interests. (i) Notwithstanding the restrictions contained in Section 4.2.1 hereof or in Article 6 of the Security Instrumenthereof, the following transfers transfers, whether occurring directly or indirectly, shall be permitted without LenderAgent’s consent (each, 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 member, partner or shareholder of a Restricted Party, (b) the transfer (but not the pledge), in one or a series of transactions, of the stock, partnership interests, membership interests or membership similar equity ownership interests (as the case may be) in a Restricted Party (includingother than a sale, without limitationtransfer, transfers for estate planning purposesor issuance of shares addressed in the following clause (c)), (c) subject to clause (ii) below, the transfer (but not a pledge) of 100% of the indirect interests in Borrower to a newly-formed public or private REIT or such newly-formed public or private REIT’s newly-formed operating partnership (less any equity interests retained by the transferor) (each, a “Permitted Advised Entity Transferee”) (a “Permitted Advised Entity Transfer”), (d) a Permitted Pledge, (e) the merger, consolidation, or other business combination, or sale of all or substantially all of the assets of any direct or indirect owner of Sponsor, (f) the transfer, issuance, conversion and/or redemption of capital stock, membership interests and partnership interests, as applicable, in (I) prior to a Permitted Advised Entity Transfer, Ashford Hospitality Prime, Inc., Ashford Hospitality Prime Limited Partnership, Ashford Prime TRS Corporation, Ashford Prime OP General Partner LLC, or Ashford Prime OP Limited Partner LLC (or their respective permitted successors) and (II) after a Permitted Advised Entity Transfer, the Permitted Advised Entity Guarantor and any Person owning any direct and/or indirect interest in the Permitted Advised Entity Guarantor, (g) [intentionally omitted], or (h) the sale, transfer or issuance of shares of preferred or common stock in any Restricted Party that is a publicly traded entity, provided such shares of preferred or common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange, (d) any Sale or Pledge, or similar transfer as the result of the exercise by Agent, any Lender, any Affiliate of Agent or Lender, or any of their designees or nominees, of any rights or remedies under the Loan Documents (including, without limitation, as the result of the exercise of the remedies under the Pledge Agreement), (e) any Permitted Encumbrance (provided, that, with respect to any workers’, mechanics’ or other similar Liens on any Individual Property, such Lien shall be deemed a Permitted Transfer as long as Security Guarantor, within sixty (60) days of written notice of such Lien, shall contest such Lien in accordance with this Agreement or otherwise satisfy or dismiss such Lien (excluding any statutory Liens that may attach by virtue of the commencement of work), (f) any Lease, hotel occupancy agreement or similar arrangement made in accordance with this Agreement or the other Loan Documents; (g) the pledges of collateral and ownership interests contemplated by the Pledge Agreement, (h) the obligation of Jamaica Security Guarantor to convey the Release Parcel, and the release thereof in accordance with this Agreement, (i) the replacement of any Manager or Franchisor in accordance with this Agreement, (j) any Permitted Equipment Leases, (k) Permitted Intercompany Debt incurred in accordance with the terms and conditions of this Agreement, (l) the pledge of direct or indirect interests in any Restricted Party if, the exercise of such pledge would constitute a Permitted Transfer hereunder (subject to the applicable restrictions and requirements set forth in this Section 8.2), (m) transfers between Affiliates of any Borrower or Security Guarantor that are Controlled by Sponsor, or (n) any other transfer, Sale or Pledge, or similar action that is expressly permitted to be taken in accordance with the Loan Documents (including, without limitation, the tendering of a deed in lieu or an assignment in lieu in accordance with the requirements set forth in the Carry Guaranty, sales and dispositions of personal property in accordance with this Agreement, any Indebtedness permitted under this Agreement, and the replacement of FF&E in accordance with this Agreement); provided, however, with respect to the transfers listed in clauses (a), (b), (dc), (e), and/or l) or (fm) above, (A) Lender shall receive not less than thirty (30) days prior written notice of no such transfers shall, whether pursuant to a single transfer or a series of transfers, result in a “Change of Control” (excluding any transfers contemplated by clause (f) aboveas defined in the Credit Agreement), (B) no such transfers shall result in a change in Control of Sponsor, Guarantor, or Affiliated Manager, (C) after giving effect to such transfers, at least one (1) Sponsor shall (I) own at least a 51% one hundred percent (100)% of the direct or indirect equity ownership interest in each of Borrower, Operating LesseeSecurity Guarantor, Pledgor, Pledgee, and any SPC Party; (II) Control Borrower, Operating LesseeSecurity Guarantor, Pledgor, Pledgee, and any SPC Party; and (III) control indirectly Control (through the indirect ownership and Control of Security Guarantor) the day-to-day operation of the Property, subject to the day-to-day management of the Property by Manager pursuant to the Management Agreement, (DC) each Individual Property shall continue to be managed by a Qualified ManagerManager approved by Agent in accordance with this Agreement and subject to a franchise agreement with a Qualified Franchisor approved by Agent in accordance with this Agreement, (ED) in the case of the no such transfer shall be of any direct equity ownership interests in Borrower, Operating Lessee Security Guarantor, or Pledgee, or in any SPC Party, (E) following such transfers transfers, all relevant Persons shall be conditioned upon in continued compliance with the relevant provisions of Section 3.1.24 hereofhereof (solely to the extent applicable to any Person), (F) following such transfers shall be conditioned upon transfers, each of Borrower’s Borrower and Operating Lessee’s Security Guarantor shall have the ability to, after giving effect to the equity transfer in question, (I) remake the representations contained herein relating to ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (and, upon LenderAgent’s request, each of Borrower and Operating Lessee and/or Security Guarantor shall deliver to Lender (x) an OfficerAgent, upon Agent’s Certificate containing such updated representations effective as of the date of the consummation of the applicable equity transferrequest, and (y) searches, reasonably acceptable to LenderAgent, for any entity or individual owning, directly or indirectly, 20% Person that did not own thirty-five percent (35%) or more of the equity ownership interests in the Borrower and Security Guarantor who will own thirty-five percent (35%) or more of the equity ownership interests in Borrower and/or Operating Lessee, as applicable, and Security Guarantor as a result of such transfer), and (II) continue to comply with the covenants contained herein relating to ERISA matters and the Patriot Act, OFAC, and matters concerning Embargoed Persons, (G) in the case Borrower pays all of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with Section 7.3 hereof (unless such Affiliate Manager has previously been paired with Borrower in an Insolvency Opinion or New NonAgent’s and Lender’s out-Consolidation Opinion previously delivered to Lender of-pocket costs and expenses in connection with the Loan), or (2) the transfer of any equity ownership interests in any Restricted Party that results in any Person and its Affiliates that owned less than forty-nine percent (49%) prior to such transfer, owning in excess of fortyincluding, without limitation, reasonable third-nine percent (49%) of the direct or indirect equity ownership interests in Borrowerparty attorneys’ fees and expenses, Operating Lessee or any SPC Party after such transfer, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, (H) [intentionally omitted], (I) such transfers shall be expressly permitted pursuant to the terms (x) of the Franchise Agreement without Franchisor’s consent or such consent has been obtained and (y) the Management Agreement without Manager’s consent or such consent has been obtainedif any, and (JH) such transfers shall not trigger any right of first refusal, refusal or option to purchase or default under the REAsOperating Agreements.
(ii) Notwithstanding the foregoing or anything herein to the contrary, a Permitted Advised Entity Transfer shall only be permitted, provided, that the conditions set forth in Sections 8.2(i)(A) and 8.2(i)(C) through (J), above have been satisfied and, provided further, that the following conditions are met: (A) such Permitted Advised Entity Transferee shall be externally advised during the term of the Loan by Ashford, Inc. or its Affiliates, (B) if required by Lender, delivery of a Rating Agency Confirmation, (C) on the date of the Permitted Advised Entity Transfer, either Ashford Hospitality Prime Limited Partnership or Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property), (D) the Permitted Advised Entity Transferee or its operating partnership (the “Permitted Advised Entity Guarantor”) shall provide Lender with a recourse guaranty and environmental indemnity with respect to obligations and liabilities arising from and after the date of such Permitted Advised Entity Transfer in form and substance substantially the same as the Guaranty and the Environmental Indemnity Agreement; provided, that such replacement of the Guarantor is permitted by REMIC Requirements, and (E) such Permitted Advised Entity Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property. Notwithstanding the foregoing or anything contained herein or in any of the other Loan Documents to the contrary, following a Permitted Advised Entity Transfer, Ashford Hospitality Limited Partnership shall not be released from the Guaranty or the Environmental Indemnity Agreement until such time as Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property).
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Permitted Transfers of Equity Interests. (i) Notwithstanding the restrictions contained in Section 4.2.1 hereof or in Article 6 of the Security Instrument, the following transfers shall be permitted without Lender’s consent (each, a “Permitted Equity Transfer”):
consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, (b) 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 (including, without limitation, transfers for estate planning purposes)Party, (c) subject to clause (ii) below, the transfer (but not a pledge) of 100% of the indirect interests in Borrower to a newly-formed public or private REIT or such newly-formed public or private REIT’s newly-formed operating partnership (less any equity interests retained by the transferor) (each, a “Permitted Advised Entity Transferee”) (a “Permitted Advised Entity Transfer”), (d) a Permitted Pledge, (e) the merger, consolidation, or other business combination, or sale of all or substantially all of the assets of any direct or indirect owner of Sponsor, (f) the transfer, issuance, conversion and/or redemption of capital stock, membership interests and partnership interests, as applicable, in (I) prior to a Permitted Advised Entity Transfer, Ashford Hospitality Prime, Inc., Ashford Hospitality Prime Limited Partnership, Ashford Prime TRS Corporation, Ashford Prime OP General Partner LLC, or Ashford Prime OP Limited Partner LLC (or their respective permitted successors) and (II) after a Permitted Advised Entity Transfer, the Permitted Advised Entity Guarantor and any Person owning any direct and/or indirect interest in the Permitted Advised Entity Guarantor, (g) [intentionally omitted], or (h) the sale, transfer or issuance of shares of preferred or common stock in any Restricted Party that is a publicly traded entity, provided such shares of preferred or common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange, or (d) the sale, transfer or issuance of stock in a Restricted Party to third party investors through licensed U.S. broker-dealers (or placement agents, finders or other Persons exempt from broker-dealer licensing requirements) in accordance with applicable Legal Requirements; provided, however, with respect to the transfers listed in clauses (a), ) or (b), (d), (e), and/or (f) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers (excluding any transfers contemplated by clause (f) above)transfers, (B) no such transfers shall result in a change in Control of Sponsor, Guarantor, or Affiliated Manager, (C) after giving effect to such transfers, at least one (1) Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, Lessee and any SPC Party; (II) Control Borrower, Operating Lessee, Lessee and any SPC Party; and (III) control the day-to-day operation of the each Individual Property, (D) each Individual Property shall continue to be managed by a Qualified Manager, (E) in the case of the transfer of any direct equity ownership interests in Borrower, Operating Lessee Borrower or in any SPC Party, such transfers shall be conditioned upon continued compliance with the relevant provisions of Section 3.1.24 hereof, (F) such transfers shall be conditioned upon each of Borrower’s and Operating Lessee’s ability to, after giving effect to the equity transfer in question, (I) remake the representations contained herein relating to ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (and, upon Lender’s request, each of Borrower and Operating Lessee 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 entity or individual owning, directly or indirectly, 20% or more of the interests in Borrower and/or Operating Lessee, as applicable, as a result of such transfer), and (II) continue to comply with the covenants contained herein relating to ERISA matters and the Patriot Act, OFAC, and matters concerning Embargoed Persons, (G) in the case of (1) the transfer of the management of the any Individual Property to a new Affiliated Manager in accordance with Section 7.3 hereof (unless such Affiliate Manager has previously been paired with Borrower in an Insolvency Opinion or New Non-Consolidation Opinion previously delivered to Lender in connection with the Loan)hereof, or (2) the transfer of any equity ownership interests in any Restricted Party that results in any Person and its Affiliates that owned less than forty-nine percent (49%) prior to such transfer, owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower, Operating Lessee or any SPC Party after such transfer, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, transfer and (H) [intentionally omitted], (I) such transfers shall be expressly permitted pursuant to the terms (x) of the Franchise Agreement without Franchisor’s consent or such consent has been obtained and (y) the Management Agreement without Manager’s consent or such consent has been obtained, and (J) such transfers shall not trigger any right of first refusal, option to purchase or default under the REAs.
(ii) Notwithstanding the foregoing or anything herein to the contrary, a Permitted Advised Entity Transfer shall only be permitted, provided, that the conditions set forth in Sections 8.2(i)(A) and 8.2(i)(C) through (J), above have been satisfied and, provided further, that the following conditions are met: (A) such Permitted Advised Entity Transferee shall be externally advised during the term of the Loan by Ashford, Inc. or its Affiliates, (B) if required by Lender, delivery of a Rating Agency Confirmation, (C) on the date of the Permitted Advised Entity Transfer, either Ashford Hospitality Prime Limited Partnership or Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property), (D) the Permitted Advised Entity Transferee or its operating partnership (the “Permitted Advised Entity Guarantor”) shall provide Lender with a recourse guaranty and environmental indemnity with respect to obligations and liabilities arising from and after the date of such Permitted Advised Entity Transfer in form and substance substantially the same as the Guaranty and the Environmental Indemnity Agreement; provided, that such replacement of the Guarantor is permitted by REMIC Requirements, and (E) such Permitted Advised Entity Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property. Notwithstanding the foregoing or anything contained herein or in any of the other Loan Documents to the contrary, following a Permitted Advised Entity Transfer, Ashford Hospitality Limited Partnership shall not be released from the Guaranty or the Environmental Indemnity Agreement until such time as Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property).
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Permitted Transfers of Equity Interests. (i) Notwithstanding the restrictions contained in Section 4.2.1 hereof or in Article 6 of the Security Instrument, the following transfers shall be permitted without Lender’s consent (each, a “Permitted Equity Transfer”):
's consent: (a) a transfer (but not a pledge) by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, (b) 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 (including, without limitation, transfers for estate planning purposes)Party, (c) subject to clause (ii) below, the transfer (but not a pledge) of 100% of the indirect interests merger in Borrower to a newly-formed public or private which Whitestone REIT or such newly-formed public or private REIT’s newly-formed operating partnership (less any equity interests retained by the transferor) (each, a “Permitted Advised Entity Transferee”) (a “Permitted Advised Entity Transfer”), (d) a Permitted Pledge, (e) the merger, consolidation, or other business combination, or sale of all or substantially all of the assets of any direct or indirect owner of Sponsor, (f) the transfer, issuance, conversion and/or redemption of capital stock, membership interests and partnership interests, as applicable, in (I) prior to a Permitted Advised Entity Transfer, Ashford Hospitality Prime, Inc., Ashford Hospitality Prime Limited Whitestone REIT Operating Partnership, Ashford Prime TRS Corporation, Ashford Prime OP General Partner LLC, or Ashford Prime OP Limited Partner LLC (or their respective permitted successors) and (II) after a Permitted Advised Entity Transfer, LP is the Permitted Advised Entity Guarantor and any Person owning any direct and/or indirect interest in the Permitted Advised Entity Guarantor, (g) [intentionally omitted]surviving entity, or (hd) the sale, transfer or issuance of shares of preferred or common stock in any Restricted Party that is a publicly traded entity, provided such shares of preferred or common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange; provided, however, with respect to the transfers listed in clauses (a), (b), ) or (d), (e), and/or (fc) above, (A) Lender shall receive not less than thirty (30) days prior written notice of such transfers (excluding any transfers contemplated by clause (f) above)transfers, (B) no such transfers shall result in a change in Control of Sponsor, Guarantor, or Affiliated Manager, (C) after giving effect to such transfers, at least one (1) Sponsor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, Borrower and any SPC Party; (II) Control Borrower, Operating Lessee, Borrower and any SPC Party; and (III) control the day-to-day operation of the Property, (D) each Individual the Property shall continue to be managed by a Qualified Manager, (E) in the case of the transfer of any direct equity ownership interests in Borrower, Operating Lessee Borrower or in any SPC Party, such transfers shall be conditioned upon continued compliance with the relevant provisions of Section 3.1.24 hereof, and (F) such transfers shall be conditioned upon each of Borrower’s and Operating Lessee’s 's ability to, after giving effect to the equity transfer in question, (I) remake the representations contained herein relating to ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (and, upon Lender’s 's request, each of Borrower and Operating Lessee shall deliver to Lender (x) an Officer’s '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 entity or individual owning, directly or indirectly, 20% or more of the interests in the Borrower and/or Operating Lessee, as applicable, as a result of such transfer), and (II) continue to comply with the covenants contained herein relating to ERISA matters and the Patriot Act, OFAC, and matters concerning Embargoed Persons, (G) in the case of (1) the transfer of the management of the Property to a new Affiliated Manager in accordance with Section 7.3 hereof (unless such Affiliate Manager has previously been paired with Borrower in an Insolvency Opinion or New Non-Consolidation Opinion previously delivered to Lender in connection with the Loan), or (2) the transfer of any equity ownership interests in any Restricted Party that results in any Person and its Affiliates that owned less than forty-nine percent (49%) prior to such transfer, owning in excess of forty-nine percent (49%) of the direct or indirect equity ownership interests in Borrower, Operating Lessee or any SPC Party after such transfer, such transfers shall be conditioned upon delivery to Lender of a New Non-Consolidation Opinion addressing such transfer, (H) [intentionally omitted], (I) such transfers shall be expressly permitted pursuant to the terms (x) of the Franchise Agreement without Franchisor’s consent or such consent has been obtained and (y) the Management Agreement without Manager’s consent or such consent has been obtained, and (J) such transfers shall not trigger any right of first refusal, option to purchase or default under the REAs.
(ii) Notwithstanding the foregoing or anything herein to the contrary, a Permitted Advised Entity Transfer shall only be permitted, provided, that the conditions set forth in Sections 8.2(i)(A) and 8.2(i)(C) through (J), above have been satisfied and, provided further, that the following conditions are met: (A) such Permitted Advised Entity Transferee shall be externally advised during the term of the Loan by Ashford, Inc. or its Affiliates, (B) if required by Lender, delivery of a Rating Agency Confirmation, (C) on the date of the Permitted Advised Entity Transfer, either Ashford Hospitality Prime Limited Partnership or Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property), (D) the Permitted Advised Entity Transferee or its operating partnership (the “Permitted Advised Entity Guarantor”) shall provide Lender with a recourse guaranty and environmental indemnity with respect to obligations and liabilities arising from and after the date of such Permitted Advised Entity Transfer in form and substance substantially the same as the Guaranty and the Environmental Indemnity Agreement; provided, that such replacement of the Guarantor is permitted by REMIC Requirements, and (E) such Permitted Advised Entity Guarantor shall (I) own at least a 51% direct or indirect equity ownership interest in each of Borrower, Operating Lessee, and any SPC Party; (II) Control Borrower, Operating Lessee, and any SPC Party; and (III) control the day-to-day operation of the Property. Notwithstanding the foregoing or anything contained herein or in any of the other Loan Documents to the contrary, following a Permitted Advised Entity Transfer, Ashford Hospitality Limited Partnership shall not be released from the Guaranty or the Environmental Indemnity Agreement until such time as Permitted Advised Entity Guarantor (I) shall have a minimum Net Worth of not less than $200,000,000 (excluding the Property) and (II) shall have a Liquidity of not less than $25,000,000 (excluding the Property).DMEAST #17478116 v7 71
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