Permitted Transfers of Interest in Borrower. A Transfer of (but not a mortgage, pledge, hypothecation, encumbrance or grant of a security interest in) a direct or indirect beneficial interest in Borrower or any SPC Party of Borrower shall be permitted without Lender’s consent if (a) Lender receives thirty (30) days prior written notice (or such shorter period of time as may be permitted by Lender in its sole discretion) thereof and, to the extent required to permit compliance by Borrower’s affiliates with Regulation FD, agrees to regard and keep the same as Confidential, (b) Transferee and its Related Persons must not be Disqualified Transferees as of the date of the Transfer; provided, however, that in the event that the Transferee or any of its Related Persons is a Disqualified Transferee, Lender shall not unreasonably withhold its consent, and may consider such fact in making its determination, but such fact shall not constitute the sole factor or reason for withholding its consent, (c) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing (other than an Event of Default which would be cured by such Transfer), (d) subsequent to such Transfer, Borrower and each SPC Party continue to satisfy the conditions of Section 3.1.24, (e) subsequent to such Transfer, Guarantor owns directly or indirectly more than fifty percent (50%) of Borrower and each SPC Party and controls Borrower and each SPC Party, and (f) if (i) such Transfer causes Transferee to own, in the aggregate with the ownership interests of its Affiliates, more than a 49% interest in Borrower or any SPC Party (and Transferee together with its Affiliates did not, prior to such Transfer, own more than a 49% interest in Borrower or such SPC Party), or (ii) such Transfer, together with all other Transfers of direct or indirect interest in Borrower or any SPC Party, whether in a single Transfer or in a series of Transfers and whether or not effected simultaneously, results in a transfer of more than 49% of the aggregate ownership interests in Borrower or any SPC Party, an acceptable non-consolidation opinion is delivered to Lender and to each of the Rating Agencies concerning, as applicable, Borrower, each SPC Party, Transferee and/or their respective owners. Notwithstanding the foregoing, nothing contained in this Agreement or the other Loan Documents shall in any way restrict or prohibit, nor shall any notice to Lender or consent of Lender or Rating Agency Confirmation (except as expressly provided below) be required in connection with (A) the transfer, mortgage, pledge, hypothecation, encumbrance or issuance of any ownership interests or securities in VNO, VRLP, CEI, CRE, YAA, YAP or YCI or any Public Company (or of any Persons owning an interest in any of the foregoing), (B) the merger or consolidation of VNO, VRLP, CEI, CRE, YAA, YAP or YCI or any Public Company with or into any other Person (or of any Persons owning an interest in any of the foregoing), or a sale or transfer of all or substantially all of the assets of VNO, VRLP, CEI, CRE, YAA, YAP or YCI or of any Public Company (or of any Persons owning an interest in any of the foregoing), (C) the transfer, mortgage, pledge, hypothecation or encumbrance of any ownership interests or securities in Guarantor between or among VNO, VRLP, CEI, CRE, YAA, YAP and YCI (or one or more entities owned and controlled by any one or more of the foregoing), (D) the issuance of any ownership interests or securities in Guarantor so long as Guarantor (or its permitted successor) or its direct or indirect owner is or, in connection with such issuance, becomes, a Public Company, and (E) the merger or consolidation of Guarantor or its direct or indirect owner with or into any other Person, provided that the surviving entity of such merger or consolidation or its direct or indirect owner is a Public Company; provided further that, if, after giving effect to any transaction described under clause (D) or (E), VNO, VRLP, CEI, CRE, YAA, YAP and/or YCI would own in the aggregate, directly or indirectly, less than fifty-one percent (51%) interest of Borrower or any SPC Party or would not control Borrower and each SPC Party, Borrower shall have obtained a Rating Agency Confirmation.
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Samples: Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust)
Permitted Transfers of Interest in Borrower. A Transfer of (but not a mortgage, pledge, hypothecation, encumbrance or grant of a security interest in) a direct or indirect beneficial interest in Borrower or any SPC Party of Borrower shall be permitted without Lender’s consent if (a) Lender receives thirty (30) days prior written notice (or such shorter period of time as may be permitted by Lender in its sole discretion) thereof and, to the extent required to permit compliance by Borrower’s affiliates with Regulation FD, agrees to regard and keep the same as Confidential, (b) Transferee and its Related Persons must not be Disqualified Transferees as of the date of the Transfer; provided, however, that in the event that the Transferee or any of its Related Persons is a Disqualified Transferee, Lender shall not unreasonably withhold its consent, and may consider such fact in making its determination, but such fact shall not constitute the sole factor or reason for withholding its consent, (c) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing (other than an Event of Default which would be cured by such Transfer), (d) subsequent to such Transfer, Borrower and each SPC Party continue to satisfy the conditions of Section 3.1.24, (e) subsequent to such Transfer, Guarantor owns directly or indirectly more than fifty percent (50%) of Borrower and each SPC Party and controls Borrower and each SPC Party, and (f) if (i) such Transfer causes Transferee to own, in the aggregate with the ownership interests of its Affiliates, more than a 49% interest in Borrower or any SPC Party (and Transferee together with its Affiliates did not, prior to such Transfer, own more than a 49% interest in Borrower or such SPC Party), or (ii) such Transfer, together with all other Transfers of direct or indirect interest in Borrower or any SPC Party, whether in a single Transfer or in a series of Transfers and whether or not effected simultaneously, results in a transfer of more than 49% of the aggregate ownership interests in Borrower or any SPC Party, an acceptable non-consolidation opinion is delivered to Lender and to each of the Rating Agencies concerning, as applicable, Borrower, each SPC Party, Transferee and/or their respective owners. Notwithstanding the foregoing, nothing contained in this Agreement or the other Loan Documents shall in any way restrict or prohibit, nor shall any notice to Lender or consent of Lender or Rating Agency Confirmation (except as expressly provided below) be required in connection with (A) the transfer, mortgage, pledge, hypothecation, encumbrance or issuance of any ownership interests or securities in VNO, VRLP, CEI, CRE, YAA, YAP or YCI or any Public Company (or of any Persons owning an interest in any of the foregoing), (B) the merger or consolidation of VNO, VRLP, CEICET, CRE, YAA, YAP or YCI or any Public Company with or into any other Person (or of any Persons owning an interest in any of the foregoing), or a sale or transfer of all or substantially all of the assets of VNO, VRLP, CEI, CRE, YAA, YAP or YCI or of any Public Company (or of any Persons owning an interest in any of the foregoing), (C) the transfer, mortgage, pledge, hypothecation or encumbrance of any ownership interests or securities in Guarantor between or among VNO, VRLP, CEI, CRE, YAA, YAP and YCI (or one or more entities owned and controlled by any one or more of the foregoing), (D) the issuance of any ownership interests or securities in Guarantor so long as Guarantor (or its permitted successor) or its direct or indirect owner is or, in connection with such issuance, becomes, a Public Company, and (E) the merger or consolidation of Guarantor or its direct or indirect owner with or into any other Person, provided that the surviving entity of such merger or consolidation or its direct or indirect owner is a Public Company; provided further that, if, after giving effect to any transaction described under clause (D) or (E), VNO, VRLP, CEI, CRE, YAA, YAP and/or YCI would own in the aggregate, directly or indirectly, less than fifty-one percent (51%) interest of Borrower or any SPC Party or would not control Borrower and each SPC Party, Borrower shall have obtained a Rating Agency Confirmation.
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Permitted Transfers of Interest in Borrower. A Borrower shall not permit or suffer the Transfer of (but not a mortgage, pledge, hypothecation, encumbrance or grant of a security interest in) a direct or indirect beneficial any ownership interest in Borrower or in any SPC Party entity owning directly or indirectly any interest in Borrower. The preceding sentence notwithstanding, Borrower may permit Transfers of indirect ownership interests in Borrower shall be permitted without Lender’s consent if or in any entity owning directly or indirectly any interest in Borrower, provided that (a) Lender receives thirty any such Transfer is a complete conveyance of the related interest and not a pledge, encumbrance or other Transfer of such interest, (30b) days prior written notice either (or such shorter period of time as may be permitted i) the transferee is approved by Lender in its sole discretiondiscretion or (ii) thereof andBeacon and/or PaineWebber own, to the extent required to permit compliance by Borrower’s affiliates with Regulation FDdirectly or indirectly, agrees to regard and keep the same as Confidential, (b) Transferee and its Related Persons must not be Disqualified Transferees as 100% of the date of the ownership interests in Borrower and Mezzanine Borrower after such Transfer; provided, however, that in the event that the Transferee or any of its Related Persons is a Disqualified Transferee, Lender shall not unreasonably withhold its consent, and may consider such fact in making its determination, but such fact shall not constitute the sole factor or reason for withholding its consent, (c) immediately prior if Beacon continues to own any indirect interests in Borrower after such Transfer, no Event BCI shall be the sole general partner of Default BCLP and shall have occurred the right and be continuing (other than an Event power to direct the day-to-day management, business and affairs of Default which would be cured by such Transfer)BCLP, and (d) subsequent to such Transfer, Borrower and each SPC Party continue to satisfy the conditions of Section 3.1.24, (e) subsequent to such Transfer, Guarantor owns directly or indirectly more than fifty percent (50%) of Borrower and each SPC Party and controls Borrower and each SPC Party, and (f) if (i) such Transfer causes Transferee to own, in the aggregate with the ownership interests of its Affiliates, more than a 49% interest in Borrower or any SPC Party (and Transferee together with its Affiliates did not, prior to such Transfer, own more than a 49% interest in Borrower or such SPC Party), or (ii) such Transfer, together with all other Transfers of direct or indirect interest in Borrower or any SPC Party, whether in a single Transfer or in a series of Transfers and whether or not effected simultaneously, results in a transfer of more than 49% of the aggregate ownership interests in Borrower or any SPC Party, an acceptable non-consolidation opinion is delivered to Lender and to each of the Rating Agencies concerning, as applicable, Borrower, each SPC Party, Transferee and/or their respective owners. Notwithstanding the foregoing, nothing contained in this Agreement or the other Loan Documents shall in any way restrict or prohibit, nor shall any notice to Lender or consent of Lender or Rating Agency Confirmation (except as expressly provided below) be required in connection with (A) the transfer, mortgage, pledge, hypothecation, encumbrance or issuance of any ownership interests or securities in VNO, VRLP, CEI, CRE, YAA, YAP or YCI or any Public Company (or of any Persons owning an interest in any of the foregoing), (B) the merger or consolidation of VNO, VRLP, CEI, CRE, YAA, YAP or YCI or any Public Company with or into any other Person (or of any Persons owning an interest in any of the foregoing), or a sale or transfer of all or substantially all of the assets of VNO, VRLP, CEI, CRE, YAA, YAP or YCI or of any Public Company (or of any Persons owning an interest in any of the foregoing), (C) the transfer, mortgage, pledge, hypothecation or encumbrance of any ownership interests or securities in Guarantor between or among VNO, VRLP, CEI, CRE, YAA, YAP and YCI (or one or more entities owned and controlled by any one or more of the foregoing), (D) the issuance of any ownership interests or securities in Guarantor so long as Guarantor (or its permitted successor) or its direct or indirect owner is or, in connection with such issuance, becomes, a Public Company, and (E) the merger or consolidation of Guarantor or its direct or indirect owner with or into any other Person, provided that the surviving entity of such merger or consolidation or its direct or indirect owner is a Public Company; provided further that, if, after giving effect to any transaction described under such Transfer and all prior Transfers, more than 49% of the direct or indirect interests of Borrower are held by an affiliated group other than Beacon or PaineWebber, Lender receives a non-consolidation opinion acceptable to Lender in its reasonable discretion or, if the Loan is then included in a Securitization, acceptable to the Rating Agencies in their sole discretion; provided that a non-consolidation opinion shall be required to the extent that either Beacon or PaineWebber drop their ownership interests in Borrower or Mezzanine Borrower below 49% and subsequently increase it back to 49% or more. Additionally, (i) pledges and other encumbrances of the direct or indirect interests held by Beacon and/or PaineWebber (and/or by their direct or indirect subsidiaries) in Beacon/XX Xxxxxxx LLC or in any entity that directly or indirectly owns Beacon/XX Xxxxxxx LLC shall be permitted, provided that the foreclosure of any such interests shall be an Event of Default unless permitted by the immediately preceding sentence, and (ii) pledges, encumbrances and other Transfers of any direct or indirect ownership interest in Beacon or PaineWebber or in any entity owning directly or indirectly any interest in Beacon or PaineWebber shall not be restricted hereby or by any other provision of the Loan Documents, subject only to the provisions of clause (Dc) or (E), VNO, VRLP, CEI, CRE, YAA, YAP and/or YCI would own above with respect to Beacon. Lender hereby consents to the pledge of the ownership interests in Borrower by the aggregate, directly or indirectly, less than fifty-one percent (51%) interest of Borrower or any SPC Party or would not control Mezzanine Borrower and each SPC Partyof the ownership interests in CAOK Managers, Inc. by Beacon Capital Partners, Inc., as security for the Mezzanine Loan. Notwithstanding anything in this Section 8.2 to the contrary, other than with respect to the Mezzanine Loan, no transfers of direct ownership interests in Borrower shall have obtained a Rating Agency Confirmationbe permitted.
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Permitted Transfers of Interest in Borrower. A Transfer of (but not a mortgage, pledge, hypothecation, encumbrance or grant of a security interest in) a direct or indirect beneficial interest in Borrower or any SPC Party of Borrower shall be permitted without Lender’s consent if (a) Lender receives thirty (30) days days’ prior written notice (or such shorter period of time as may be permitted by Lender in its sole discretion) thereof and, to the extent required to permit compliance by Borrower’s affiliates with Regulation FD, agrees to regard and keep the same as Confidential, (b) Transferee and its Related Persons must not be Disqualified Transferees as of the date of the Transfer; provided, however, that in the event that the Transferee or any of its Related Persons is a Disqualified Transferee, Lender shall not unreasonably withhold its consent, and may consider such fact in making its determination, but such fact shall not constitute the sole factor or reason for withholding its consent, (c) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing (other than an Event of Default which would be cured by such Transfer), (d) subsequent to such Transfer, Borrower and each SPC Party continue to satisfy the conditions of Section 3.1.24, (e) subsequent to such Transfer, Guarantor owns directly or indirectly more than fifty percent (50%) of Borrower and each SPC Party and controls Borrower and each SPC Party, and (f) if (i) such Transfer causes Transferee to own, in the aggregate with the ownership interests of its Affiliates, more than a 49% interest in Borrower or any SPC Party (and Transferee together with its Affiliates did not, prior to such Transfer, own more than a 49% interest in Borrower or such SPC Party), or (ii) such Transfer, together with all other Transfers of direct or indirect interest in Borrower or any SPC Party, whether in a single Transfer or in a series of Transfers and whether or not effected simultaneously, results in a transfer of more than 49% of the aggregate ownership interests in Borrower or any SPC Party, an acceptable non-consolidation opinion is delivered to Lender and to each of the Rating Agencies concerning, as applicable, Borrower, each SPC Party, Transferee and/or their respective owners. Notwithstanding the foregoing, nothing contained in this Agreement or the other Loan Documents shall in any way restrict or prohibit, nor shall any notice to Lender or consent of Lender or Rating Agency Confirmation (except as expressly provided below) be required in connection with (A) the transfer, mortgage, pledge, hypothecation, encumbrance or issuance of any ownership interests or securities in VNO, VRLP, CEI, CRE, YAA, YAP or YCI or any Public Company (or of any Persons owning an interest in any of the foregoing), (B) the merger or consolidation of VNO, VRLP, CEI, CRE, YAA, YAP or YCI or any Public Company with or into any other Person (or of any Persons owning an interest in any of the foregoing), or a sale or transfer of all or substantially all of the assets of VNO, VRLP, CEI, CRE, YAA, YAP or YCI or of any Public Company (or of any Persons owning an interest in any of the foregoing), (C) the transfer, mortgage, pledge, hypothecation or encumbrance of any ownership interests or securities in Guarantor between or among VNO, VRLP, CEI, CRE, YAA, YAP and YCI (or one or more entities owned and controlled by any one or more of the foregoing), (D) the issuance of any ownership interests or securities in Guarantor so long as Guarantor (or its permitted successor) or its direct or indirect owner is or, in connection with such issuance, becomes, a Public Company, and (E) the merger or consolidation of Guarantor or its direct or indirect owner with or into any other Person, provided that the surviving entity of such merger or consolidation or its direct or indirect owner is a Public Company; provided further that, if, after giving effect to any transaction described under clause (D) or (E), VNO, VRLP, CEI, CRE, YAA, YAP and/or YCI would own in the aggregate, directly or indirectly, less than fifty-one percent (51%) interest of Borrower or any SPC Party or would not control Borrower and each SPC Party, Borrower shall have obtained a Rating Agency Confirmation.
Appears in 1 contract
Permitted Transfers of Interest in Borrower. A (a) Notwithstanding anything to the contrary contained in Section 4.2.1, the following Transfers (“Permitted Transfers”) shall be deemed to be permitted hereunder without the consent of Lender:
(i) provided that no Default or Event of Default shall have occurred and remain uncured, a Transfer of (but not a mortgage, pledge, hypothecation, encumbrance or grant ) of a security interest in) a direct or indirect beneficial interest in Borrower, provided that (A) such Transfer shall not cause the transferee (together with its Affiliates) to acquire Control of, or result in any change in Control of, Borrower or any SPC Party (if such transferee did not previously Control Borrower), (B) after giving effect to such Transfer, the aggregate of all Transfers of direct or indirect interests in Borrower shall not exceed forty-nine percent (49%) of the direct and indirect interests in Borrower existing as of the date hereof (excluding however the sale, transfer or issuance of shares of common stock in any entity that is a publicly traded entity, provided that either (I) such shares of common stock are listed on the New York Stock Exchange or another nationally recognized stock exchange or (II) such shares are sold, transferred or issued to third party investors through licensed U.S. broker-dealers in accordance with Legal Requirements), (C) to the extent any transferee owns twenty percent (20%) or more of the direct or indirect interests in Borrower immediately following such Transfer, Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer not less than ten (10) days prior to the date of such Transfer, (D) to the extent any transferee owns twenty percent (20%) or more of the direct or indirect interests in Borrower immediately following such Transfer (provided such transferee did not own 20% or more of the direct or indirect ownership interests in Borrower as of the Closing Date), Borrower shall, prior to such Transfer, deliver, at Borrower’s sole cost and expense, customary searches (credit, judgment, lien, etc.) acceptable to Lender with respect to such transferee, and (E) the legal and financial structure of Borrower and the single purpose nature and bankruptcy remoteness of Borrower after such Transfer, shall satisfy Lender’s then current applicable underwriting criteria and requirements;
(ii) provided that no Default or Event of Default shall have occurred and remain uncured, a Transfer (but not a pledge) of an indirect interest in Borrower or any SPC Party that occurs by maintenance, devise or bequest or by operation of Borrower shall be permitted without Lender’s consent if (a) Lender receives thirty (30) days prior written notice (or law upon the death of a natural person that was the holder of such shorter period of time as may be permitted by Lender in its sole discretion) thereof and, interest to the extent required to permit compliance by Borrower’s affiliates with Regulation FD, agrees to regard and keep the same as Confidential, (b) Transferee and its Related Persons must not be Disqualified Transferees as a member of the date immediate family of such interest holder or a trust established for the Transfer; providedbenefit of such immediate family member, however, provided that in the event that the Transferee or any of its Related Persons is a Disqualified Transferee, Lender shall not unreasonably withhold its consent, and may consider such fact in making its determination, but such fact shall not constitute the sole factor or reason for withholding its consent, (c) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing (other than an Event of Default which would be cured by such Transfer), (d) subsequent to such Transfer, Borrower and each SPC Party continue to satisfy the conditions of Section 3.1.24, (e) subsequent to such Transfer, Guarantor owns directly or indirectly more than fifty percent (50%) of Borrower and each SPC Party and controls Borrower and each SPC Party, and (f) if (i) such Transfer causes Transferee to own, in the aggregate with the ownership interests of its Affiliates, more than a 49% interest in Borrower or any SPC Party (and Transferee together with its Affiliates did not, prior to such Transfer, own more than a 49% interest in Borrower or such SPC Party), or (ii) such Transfer, together with all other Transfers of direct or indirect interest in Borrower or any SPC Party, whether in a single Transfer or in a series of Transfers and whether or not effected simultaneously, results in a transfer of more than 49% of the aggregate ownership interests in Borrower or any SPC Party, an acceptable non-consolidation opinion is delivered to Lender and to each of the Rating Agencies concerning, as applicable, Borrower, each SPC Party, Transferee and/or their respective owners. Notwithstanding the foregoing, nothing contained in this Agreement or the other Loan Documents shall in any way restrict or prohibit, nor shall any notice to Lender or consent of Lender or Rating Agency Confirmation (except as expressly provided below) be required in connection with (A) the transfer, mortgage, pledge, hypothecation, encumbrance or issuance of any ownership interests or securities no such Transfer shall result in VNO, VRLP, CEI, CRE, YAA, YAP or YCI or any Public Company (or of any Persons owning an interest in any a change of the foregoing)day-to-day management of the Property, (B) the merger or consolidation Borrower shall give Lender notice of VNO, VRLP, CEI, CRE, YAA, YAP or YCI or any Public Company such Transfer together with or into any other Person (or of any Persons owning an interest in any of the foregoing), or a sale or transfer copies of all or substantially all of instruments effecting such Transfer not less than ten (10) days after the assets of VNO, VRLP, CEI, CRE, YAA, YAP or YCI or of any Public Company (or of any Persons owning an interest in any of the foregoing), (C) the transfer, mortgage, pledge, hypothecation or encumbrance of any ownership interests or securities in Guarantor between or among VNO, VRLP, CEI, CRE, YAA, YAP and YCI (or one or more entities owned and controlled by any one or more of the foregoing), (D) the issuance of any ownership interests or securities in Guarantor so long as Guarantor (or its permitted successor) or its direct or indirect owner is or, in connection with such issuance, becomes, a Public Company, and (E) the merger or consolidation of Guarantor or its direct or indirect owner with or into any other Person, provided that the surviving entity date of such merger or consolidation or its direct or indirect owner is a Public Company; provided further that, if, after giving effect to any transaction described under clause (D) or (E), VNO, VRLP, CEI, CRE, YAA, YAP and/or YCI would own in the aggregate, directly or indirectly, less than fifty-one percent (51%) interest of Borrower or any SPC Party or would not control Borrower and each SPC Party, Borrower shall have obtained a Rating Agency Confirmation.Transfer,
Appears in 1 contract
Permitted Transfers of Interest in Borrower. A Transfer of (but not a mortgage, pledge, hypothecation, encumbrance or grant of a security interest in) a direct or indirect beneficial interest in Borrower or any SPC Party of Borrower shall be permitted without Lender’s consent if (a) Lender receives thirty Notwithstanding anything to the contrary contained in Section 4.2.1, the following Transfers (30"Permitted Transfers") days prior written notice (or such shorter period of time as may shall be deemed to be permitted by Lender in its sole discretionhereunder without the consent of Lender:
(i) thereof and, to the extent required to permit compliance by Borrower’s affiliates with Regulation FD, agrees to regard and keep the same as Confidential, (b) Transferee and its Related Persons must not be Disqualified Transferees as of the date of the Transfer; provided, however, provided that in the event that the Transferee no Default or any of its Related Persons is a Disqualified Transferee, Lender shall not unreasonably withhold its consent, and may consider such fact in making its determination, but such fact shall not constitute the sole factor or reason for withholding its consent, (c) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing remain uncured, a Transfer of a direct or indirect interest in Borrower provided that (other than an Event of Default which would be cured by such Transfer), (d) subsequent to such Transfer, Borrower and each SPC Party continue to satisfy the conditions of Section 3.1.24, (e) subsequent to such Transfer, Guarantor owns directly or indirectly more than fifty percent (50%) of Borrower and each SPC Party and controls Borrower and each SPC Party, and (f) if (iA) such Transfer causes Transferee to own, in shall not (x) cause the aggregate with the ownership interests of its Affiliates, more than a 49% interest in Borrower or any SPC Party transferee (and Transferee together with its Affiliates did not, prior Affiliates) to such Transfer, own more than a 49% interest in acquire Control of Borrower or such SPC Party), Sole Member or (ii) such Transfer, together with all other Transfers of to increase its direct or indirect interest in Borrower or any SPC Party, whether in a single Transfer Sole Member to an amount which equals or in a series of Transfers and whether or not effected simultaneously, results in a transfer of more than exceeds 49% of the aggregate ownership interests or (y) result in Borrower or any SPC Party, an acceptable non-consolidation opinion is delivered to Lender and to each of the Rating Agencies concerning, as applicable, Borrower, each SPC Party, Transferee and/or their respective owners. Notwithstanding the foregoing, nothing contained in this Agreement or the other Loan Documents shall in any way restrict or prohibit, nor shall any notice to Lender or consent of Lender or Rating Agency Confirmation (except as expressly provided below) be required in connection with (A) the transfer, mortgage, pledge, hypothecation, encumbrance or issuance of any ownership interests or securities in VNO, VRLP, CEI, CRE, YAA, YAP or YCI or any Public Company (or of any Persons owning an interest in any of the foregoingSole Member no longer being Controlled by Key Principal), (B) after giving effect to such Transfer, Key Principal shall continue to own at least 39% of all equity interests (direct or indirect) in Borrower, (C) Borrower shall give Lender notice of such March 31, 2003 Transfer together with copies of all instruments effecting such Transfer not less than 10 days prior to the merger date of such Transfer, and (D) the legal and financial structure of Borrower and its members and the single purpose nature and bankruptcy remoteness of Borrower and its members after such Transfer, shall satisfy Lender's then current applicable underwriting criteria and requirements;
(ii) provided that no Default or consolidation Event of VNODefault shall have occurred and remain uncured, VRLPa Transfer of a direct or indirect interest in Borrower or Sole Member which shall cause the transferee (together with its Affiliates) to increase its direct or indirect interest in Borrower or Sole Member to an amount which equals or exceeds 49% or shall result in a change of Control of Borrower and such Sole Member, CEIprovided that (A) if such Transfer occurs prior to a Securitization, CREsuch Transfer is first approved by Lender in writing in its sole and absolute discretion; and (B) if such Transfer occurs after a Securitization, YAABorrower, YAP or YCI or any Public Company with or into any other Person at Borrower's sole cost and expense, shall first deliver (or cause to be delivered) (x) a Rating Agency Confirmation to Lender that such Transfer will not result in a qualification, downgrade or withdrawal of any Persons owning an the then applicable ratings and (y) a substantive non-consolidation opinion to Lender and the Rating Agencies with respect to Borrower and such transferee in form and substance satisfactory to Lender and the Rating Agencies;
(iii) a Transfer of a direct or indirect interest in any Sole Member to Guarantor; provided that no Default or Event of Default shall have occurred and remain uncured and, to the extent after giving effect to such Transfer, Guarantor shall own a direct interest in Sole Member which equals or exceeds 49%, Borrower shall deliver substantive non-consolidation opinion to Lender and the Rating Agencies with respect to Borrower and Guarantor in form and substance satisfactory to Lender and the Rating Agencies;
(iv) a Transfer of the foregoing)stock in Glimcher Realty Trust, including, without limitation, a Transfer over a national exchange or in connection with the purchase of all or substantially all of the stock in Glimcher Realty Trust; and
(v) a sale or transfer Transfer of all of the partnership interests in Guarantor to a Person that acquires all or substantially all of the assets of VNOGlimcher Realty Trust. For purposes of this Section 8.2, VRLP, CEI, CRE, YAA, YAP (i) a change of "Control" of Borrower (or YCI or Sole Member) shall be deemed to have occurred if (A) there is any change in the identity of any Public Company individual or entity or any group of individuals or entities who have the right, by virtue of any partnership agreement, articles of incorporation, by-laws, articles of organization, operating agreement or any other agreement, with or without taking any formative action, to cause Borrower (or Sole Member) to take some action or to prevent, restrict or impede Borrower (or Sole Member) from taking some action which, in either case, Borrower (or Sole Member) could take or could refrain from taking were it not for the rights of any Persons owning an interest in any of the foregoing), such individuals or (CB) the transfer, mortgage, pledge, hypothecation individual or encumbrance entity or group of individuals or entities that "Control" Borrower (and any ownership interests or securities Sole Member) as described in Guarantor between or among VNO, VRLP, CEI, CRE, YAA, YAP and YCI (or one or more entities owned and controlled by any one or more of the foregoing), (D) the issuance of any ownership interests or securities in Guarantor so long as Guarantor (or its permitted successor) or its direct or indirect owner is or, in connection with such issuance, becomes, a Public Company, and (E) the merger or consolidation of Guarantor or its direct or indirect owner with or into any other Person, provided that the surviving entity of such merger or consolidation or its direct or indirect owner is a Public Company; provided further that, if, after giving effect to any transaction described under clause (DA) or (E), VNO, VRLP, CEI, CRE, YAA, YAP and/or YCI would ever cease to own in the aggregate, directly or indirectly, less than fifty-one percent at least (51%) interest of Borrower all equity interests (direct or any SPC Party or would not control indirect) in Borrower and each SPC Party(ii) an "immediate family member" shall mean a sibling, Borrower March 31, 2003 spouse or child of any interest holder. Notwithstanding the foregoing, the appointment or resignation of an Independent Director shall have obtained not be deemed to constitute a Rating Agency Confirmationchange in "Control."
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