Approved Sale If the Board of Directors of the Company (the "Board") shall deliver a notice to Grantee (a "Sale Event Notice") stating that the Board has approved a sale of all or a portion of the Company through a sale of assets, securities, or otherwise (an "Approved Sale") and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee's Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 7 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Exempt Offering Assuming the accuracy of the Purchasers’ representations and warranties set forth in this Agreement, no registration under the Securities Act is required for the offer and sale of the Subordinated Notes by the Company to the Purchasers.
Exempt Transaction Subject to the accuracy of the Warrantholder's representations in Section 10 hereof, the issuance of the Preferred Stock upon exercise of this Warrant will constitute a transaction exempt from (i) the registration requirements of Section 5 of the 1933 Act, in reliance upon Section 4(2) thereof, and (ii) the qualification requirements of the applicable state securities laws.
Qualified Settlement Fund The Administrator shall establish a settlement fund that meets the requirements of a Qualified Settlement Fund (“QSF”) under US Treasury Regulation section 468B-1.
Exempt Transactions The following transactions shall be exempt from the provisions of this Section 4:
(1) any transfer of Shares to or for the benefit of any spouse, child or grandchild of the Participant, or to a trust for their benefit;
(2) any transfer pursuant to an effective registration statement filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”); and
(3) the sale of all or substantially all of the outstanding shares of capital stock of the Company (including pursuant to a merger or consolidation); provided, however, that in the case of a transfer pursuant to clause (1) above, such Shares shall remain subject to the right of first refusal set forth in this Section 4.
Completed Sale A sale of a Share shall be deemed by the Company to be completed for purposes of Section 3(d) if and only if (i) the Company has received a properly completed and executed subscription agreement, together with payment of the full purchase price of each purchased Share, from an investor who satisfies the applicable suitability standards and minimum purchase requirements set forth in the Registration Statement as determined by the Soliciting Dealer, or the Dealer Manager, as applicable, in accordance with the provisions of this Agreement, (ii) the Company has accepted such subscription, and (iii) such investor has been admitted as a shareholder of the Company. In addition, no sale of Shares shall be completed until at least five (5) business days after the date on which the subscriber receives a copy of the Prospectus. The Dealer Manager hereby acknowledges and agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever or no reason, and no commission or dealer manager fee will be paid to the Dealer Manager with respect to that portion of any subscription which is rejected.
Non-Qualified Stock Option This Option is not intended to be an “incentive stock option” within the meaning of Section 422 of the Internal Revenue Code and will be interpreted accordingly.
Asset Sale The Company or the Parent shall not and shall not permit any of their respective Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiary), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of their respective Subsidiaries or Unrestricted Subsidiaries and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless: (1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold; (2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and (3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale. In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, the Indenture provides that within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be: (1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or (2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) of the Indenture. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by the Indenture. The accumulated Net Cash Proceeds from Asset Sales not applied as set forth above shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
Exempt Transfers 12.1 Subject to the requirements of applicable Laws, the restrictions under Section 8 and the right of first refusal and right of co-sale under Section 9 and Section 10 shall not apply to (a) any sale of Equity Securities of the Company to the public pursuant to a Qualified IPO; and (b) Transfer of any Equity Securities of the Company now or hereinafter held by the Principal or the Ordinary Shareholder to the Principal’s another wholly owned entity or to a trustee, executor, or other fiduciary for the benefit of the Principal or the Principal’s any wholly owned entity or his spouse and lineal descendants (whether natural or adopted), brother, sister, parent for bona fide estate planning purposes (each such transferee pursuant to subsection (b) above, a “Permitted Transferee”, and collectively, the “Permitted Transferees”); provided, that (i) such Transfer is effected in compliance with all applicable Laws, including without limitation, the SAFE Regulations, (ii) the Principal shall remain liable for any breach by such Permitted Transferee of any provision hereunder; (iii) if any Permitted Transferee which received Equity Securities of the Company pursuant to this Section 12.1(b) ceases to be a Permitted Transferee for any reason, it shall immediately Transfer back to the applicable transferor from which it received the Equity Securities of the Company transferred to it pursuant to this Section 12.1(b) and (iv) adequate documentation therefor is provided to the Company and each such Permitted Transferee shall execute a joinder agreement in substantially the form attached hereto as Exhibit A assuming the obligations of such Ordinary Transferor under this Agreement and be bound by the terms of the Amended M&AA as the “Ordinary Shareholder” (if not already a Party hereto) upon and after such Transfer, with respect to the transferred Equity Securities; and (c) any Transfer of the Equity Securities of the Company by an Investor to any of its Affiliate; provided that (x) the transferees of such Transfer shall not be a Competitor or an Affiliate of any Competitor (provided that (A) GS shall be permitted to Transfer all or any of the Equity Securities of the Company held by it to any of the GS Controlled Affiliates, (B) Carlyle shall be permitted to Transfer all or any of the Equity Securities of the Company held by it to any of the Carlyle Controlled Affiliates and (C) Cathay shall be permitted to Transfer all or any of the Equity Securities of the Company held by it to any of the Cathay Controlled Affiliates); (y) if any transferee of such Transfer which received Equity Securities of the Company pursuant to this Section 12.1(c) ceases to be an Affiliate of such Investor for any reason or becomes a Competitor or an Affiliate of any Competitor (or in the case where the transferee is a GS Controlled Affiliate or a Carlyle Controlled Affiliate or a Cathay Controlled Affiliate, if it ceases to be a GS Controlled Affiliate or a Carlyle Controlled Affiliate or a Cathay Controlled Affiliate, as applicable, for any reason), it shall immediately Transfer back to the applicable transferor from which it received the Equity Securities of the Company transferred to it pursuant to this Section 12.1(c) and (z) the transferees of such Transfer shall execute and deliver a joinder agreement in substantially the form attached hereto as Exhibit A to join in and be bound by the terms of this Agreement and be bound by the terms of the Amended M&AA as the “Investor” (if not already a Party hereto) upon and after such Transfer.
12.2 All transfer restrictions provided in this Agreement with respect to a Transfer of Equity Securities of the Company by the Investors (including Section 8.2) shall cease to apply in the event that the Company fails to pay the applicable redemption price pursuant to Article 8.4 of the Amended M&AA and which is not cured after 30 days’ written notice of such breach delivered by an Investor to the Company.
12.3 Sections 8 through 11 shall not apply to any Transfer of any Equity Securities pursuant to any enforcement of security under any Facility Document or to any creation of security under any Facility Document; provided, however, that any transferee of such Equity Securities shall execute and deliver a joinder agreement in substantially the form attached hereto as Exhibit A to join in and be bound by the terms of this Agreement and be bound by the terms of the Amended M&AA as the “Ordinary Shareholder” (if not already a Party hereto) upon and after such Transfer. Notwithstanding anything to the contrary herein, this Section 12.3 may be further amended in respect of Sections 8 through 11 in connection with the negotiation of any Facility Document with the written consent of Majority Series A-1 Preferred Holders and the Company and the Parties shall procure any required alteration to the Amended M&AA to give effect to any such amendment.
Valid Sale This Agreement evidences a valid sale and assignment of the Sold Property from the Depositor to the Issuer, enforceable against creditors of and purchasers from the Depositor.
