Replacement Guarantor. To the extent that any Guarantor is a natural person, the death or incapacity of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.5. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after the occurrence of such death or incapacity, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (c) the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery of the written notice described in the preceding clause (b), such Satisfactory Replacement Guarantor (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as of and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lender, as and to the extent applicable, and (ii) each of Borrower, the remaining Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other things, (i) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to a securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan Documents.
Appears in 4 contracts
Samples: Commercial Loan Agreement (Red Oak Capital Fund V, LLC), Commercial Loan Agreement (Red Oak Capital Fund V, LLC), Commercial Loan Agreement (Red Oak Capital Fund V, LLC)
Replacement Guarantor. To the extent that any Guarantor is a natural person, the death or incapacity incompetency of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.5Section. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no “Event of Default Default” shall be deemed to have occurred hereunderhereunder as a result thereof, provided provided, that (a) no other Event of Default hereunder or under and as defined in the Loan Agreement has occurred and is then continuing, (b) such substitution is permitted by then applicable REMIC Requirements and (c) each of the following terms and conditions are satisfied: satisfied (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (bi) within thirty (30) days after the occurrence of such death or incapacityincompetency, Borrower delivers to Lender written notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilitiesguarantor; (cii) the replacement guarantor is a Satisfactory Replacement GuarantorGuarantor (as defined below); (diii) within fifteen (15) days after delivery of the written notice described in the preceding clause subclause (bi), such Satisfactory Replacement Guarantor (i) assumes the obligations of Guarantor hereunder and under the Guaranty and other Loan Documents in a manner satisfying the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution or (ii) executes and delivers to Prudent Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as of and after the SubstitutionStandard; (eiv) concurrently with such assumption or execution and delivery assumption, (iA) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to LenderSpousal Consent (as defined below), as and to the extent applicable, applicable and (iiB) each of Borrower, the remaining Borrower and such Replacement Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Documents in a manner satisfying the Prudent Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other things, (i) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to a securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such SubstitutionStandard; and (hv) if prior to or concurrently with such assumption, as applicable, Lender receives such information, documentation and opinions as may be reasonably required by Lender, an Insolvency Opinion has previously been delivered Lender in connection with such assumption and the Loanforegoing in order to satisfy the Prudent Lender Standard (including, Borrower delivers without limitation, opinions relating to REMIC). As used herein, the term “Satisfactory Replacement Guarantor” shall mean a replacement guarantor that (1) satisfies the net worth and liquidity requirements set forth herein, (2) is acceptable to the Rating Agencies, (3) satisfies the Prudent Lender a new Insolvency Opinion. No such death or replacement Standard and (4) is an Affiliate of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan DocumentsSponsor.
Appears in 4 contracts
Samples: www.sec.gov, Morgans Hotel Group Co., Morgans Hotel Group Co.
Replacement Guarantor. To the extent that any Guarantor is a natural person, the death or incapacity of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.5. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after the occurrence of such death or incapacity, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (c) the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery of the written notice described in the preceding clause (b), such Satisfactory Replacement Guarantor (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as of and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lender, as and to the extent applicable, and (ii) each of Borrower, the remaining Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by LenderLender or the Rating Agencies, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender and acceptable to the Rating Agencies in their sole discretion stating, among other things, (i) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to a securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, Lender or the Rating Agencies and an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan Documents.
Appears in 3 contracts
Samples: Loan Agreement (Red Oak Capital Fund IV, LLC), Loan Agreement (Red Oak Capital Fund IV, LLC), Loan Agreement (Red Oak Capital Fund IV, LLC)
Replacement Guarantor. To the extent that any Guarantor is a natural person, the death or incapacity incompetency of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.58.3. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing remain uncured or would occur as a result of such Substitution; (b) within thirty sixty (3060) days after the occurrence of such death or incapacityincompetency, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (c) the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen thirty (1530) days after delivery of the written notice described in the preceding clause (b), such Satisfactory Replacement Guarantor (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as of and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lender, as and to the extent applicable, and (ii) each of Borrower, the remaining Guarantor and/or and such Satisfactory Replacement Guarantor, as applicable, Guarantor affirms each of their respective obligations under the Loan Documents; (f) if requested by Lender, such Satisfactory Replacement Guarantor executes a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender; (g) if required by Lender or the Rating Agencies, Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; and (gh) if required by LenderLender or the Rating Agencies, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable substance and from counsel satisfactory to Lender and the Rating Agencies in their sole discretion stating, among other things, (i) that the Guaranty and the Environmental Indemnity (or the replacement new guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms terms, and (ii) that any REMIC Trust formed pursuant to a securitization Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan Documents. As used herein, the term “Satisfactory Replacement Guarantor” shall mean a replacement guarantor that is acceptable to Lender, which determination shall be based upon, inter alia, (1) such replacement guarantor having (x) a direct or indirect ownership interest in Borrower, which is reasonably satisfactory to Lender, and (y) the ability to control Borrower, (2) such replacement guarantor having a net worth and liquidity reasonably satisfactory to Lender, (3) Lender’s receipt of searches (including credit, negative news, OFAC, litigation, judgment, lien and bankruptcy searches) reasonably required by Lender on such replacement guarantor, the results of which must be reasonably acceptable to Lender, (4) such replacement guarantor otherwise satisfying Lender’s then current applicable underwriting criteria and requirements, and (5) such replacement guarantor being an experienced operator and/or owner of properties similar in location, size, class, use, operation and value as the Property, as evidenced by financial statements and other information reasonably requested by Lender or requested by the Rating Agencies. As used in this Section 8.3, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of such Person, whether through ownership of voting securities, by contract or otherwise.
Appears in 2 contracts
Samples: Loan Agreement (Moody National REIT I, Inc.), Loan Agreement (Moody National REIT I, Inc.)
Replacement Guarantor. To the extent that any Guarantor is a natural person, the death or incapacity of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.56.4. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after the occurrence of such death or incapacity, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (c) the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery of the written notice described in the preceding clause (b), such Satisfactory Replacement Guarantor (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as of and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lender, as and to the extent applicable, and (ii) each of Borrower, the each remaining Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by LenderLender or the Rating Agencies, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender and acceptable to the Rating Agencies in their sole discretion stating, among other things, (i) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to a securitization Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Lender or the Rating Agencies and a Non-Consolidation Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency New Non-Consolidation Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan Documents. As used herein, the term “Satisfactory Replacement Guarantor” shall mean a replacement guarantor that is acceptable to Lender, which determination shall be based upon, inter alia, (A) such replacement guarantor having (1) a direct or indirect ownership interest in Borrower, which is reasonably satisfactory to Lender, and (2) the ability to Control Borrower, (B) such replacement guarantor having a net worth and liquidity reasonably satisfactory to Lender, (C) Lender’s receipt of searches (including credit, negative news, OFAC, litigation, judgment, lien and bankruptcy searches) reasonably required by Lender on such replacement guarantor, the results of which must be reasonably acceptable to Lender, (D) such replacement guarantor otherwise satisfying Lender’s then current applicable underwriting criteria and requirements, and (E) such replacement guarantor being an experienced operator and/or owner of properties similar in location, size, class, use, operation and value as the Property, as evidenced by financial statements and other information reasonably requested by Lender or requested by the Rating Agencies.
Appears in 2 contracts
Samples: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Replacement Guarantor. To Upon the extent that any occurrence of an ARC III Transfer, Borrower (I) may elect to replace Guarantor is or (II) shall replace Guarantor if, as a natural person, the death or incapacity result of such ARC III Transfer, Guarantor does not own any direct or indirect equity interests in Borrower, pursuant to the terms hereof with any Person (“Replacement Guarantor”), provided that Borrower shall only be an Event of Default hereunder unless permitted to replace such Guarantor is replaced if the following conditions are met: (i) such Replacement Guarantor (A) shall have a net worth (as calculated in accordance with this Section 10.5. Borrower GAAP) in excess of $50,000,000, (B) shall be permitted have Liquidity of no less than $4,000,000, and (C) shall (x) assume the obligations of Guarantor under the Guaranty and under the Environmental Indemnity and, in connection therewith, shall execute, without any cost or expense to substitute a replacement guarantor Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and (a “Substitution”y) and no Event shall agree in such documents in the foregoing clause (x) to maintain Liquidity in the minimum amount of Default shall be deemed to have occurred hereunder, provided that each $2,000,000 throughout the remainder of the following terms term of the Loan; (ii) Lender shall have received a due formation, authorization, execution and conditions are satisfied: enforceability opinion in connection with such documents and agreements executed by such Replacement Guarantor; and (aiii) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after continuing. Notwithstanding the occurrence of such death or incapacityforegoing, Borrower delivers no Person shall be deemed to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (c) the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery of the written notice described in the preceding clause (b), such Satisfactory be an acceptable Replacement Guarantor if such Person (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution any other Person owned or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events Controlled by such Person or conditions occurring prior to, as of and after the Substitution; (e) concurrently Affiliated with such assumption or execution and delivery Person) (i1) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lenderhas been, as and to within the extent applicable, and last ten (ii10) each of Borrower, the remaining Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other thingsyears, (iy) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to a securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result any material, uncured event of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered default in connection with a loan financing which resulted in litigation or an acceleration of an indebtedness held by Lender or any other secondary market or institutional lender of similar size and with similar operations as Lender or (z) the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities subject of any other Guarantor action or proceeding under applicable Creditors Rights Laws or (2) any of the Loan Documentsprincipals or entities which Control such Person or own a material direct or indirect equity interest in such Person have ever been convicted of a felony.
Appears in 2 contracts
Samples: Loan Agreement (American Realty Capital Trust III, Inc.), Loan Agreement (American Realty Capital Trust III, Inc.)
Replacement Guarantor. To the extent that any Guarantor is a natural person, the death or incapacity incompetency of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.5Section. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no “Event of Default Default” shall be deemed to have occurred hereunderhereunder as a result thereof, provided provided, that each of the following terms and conditions are satisfied: (a) no Default or other Event of Default shall have hereunder or under and as defined in the Loan Agreement has occurred and be continuing or would occur as a result of such Substitution; is then continuing, (b) such substitution is permitted by then applicable REMIC Requirements and (c) and the Replacement Guarantor Conditions have been satisfied in Lender’s reasonable discretion. As used herein, the term “Replacement Guarantor Conditions” shall mean (i) within thirty ninety (3090) days after the occurrence of such death or incapacityincompetency, Borrower delivers to Lender written notice of its intent to substitute such Guarantor andthe Guarantor, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (cii) the replacement guarantor is a Satisfactory Replacement Guarantor; Guarantor (das defined below), (iii) within fifteen thirty (1530) days after delivery of the written notice described in the preceding clause (b)i) above, such Satisfactory Replacement Guarantor shall have executed and delivered to Lender (iA) assumes a guaranty of recourse obligations on substantially the obligations of Guarantor under the same form as this Guaranty and (B) an environmental indemnity agreement on substantially the same form as the Environmental Indemnity for events or conditions occurring prior toAgreement executed by Borrower and Guarantor in connection with the Loan (subclauses (A), and (B), collectively, the “Replacement Guaranties”), (iv) Borrower and each other Guarantor hereunder shall have executed such other reaffirmations of the Loan Documents as Lender may reasonably require, (v) Lender shall have received (A) a customary legal opinion of counsel to the Satisfactory Replacement Guarantor with respect to the enforcement of the Replacement Guaranties and with respect to the due formation, authority, due execution and delivery of the Satisfactory Replacement Guarantor Replacement Guaranties, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectivelyapplicable, and otherwise (B) a New Non-Consolidation Opinion reasonably acceptable to Lender, for events or conditions occurring prior to(vi) Lender shall have received evidence reasonably satisfactory to Lender that the Guarantor continues to comply with the Net Worth and Unencumbered Liquid Assets covenants set forth in Section 26 above, as of and after the Substitution; (e) concurrently with such assumption or execution and delivery (ivii) such Satisfactory Replacement Guarantor delivers to satisfies Lender’s then-existing “know your customer” requirements (including, without limitation, satisfactory credit and other searches customarily conducted by Lender) and (viii) Borrower shall have reimbursed Lender for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) actually incurred in connection with satisfying the foregoing. As used herein, the term “Satisfactory Replacement Guarantor” shall mean a spousal consent replacement guarantor that (1) owns a beneficial interest in form the Borrower and substance acceptable to Lender, as (2) is approved by Lender in its sole and absolute discretion. Notwithstanding the foregoing or anything stated to the extent applicablecontrary herein, a Trust may be dissolved provided that the following conditions are satisfied: (i) the remaining Trusts together with the Individual Guarantor continue to satisfy the financial covenants in Section 25(e), and (ii) each Guarantor provides Lender with no less than ten (10) days prior written notice of Borrower, such intended dissolution and such notice shall be accompanied by financial statements for the remaining Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other things, (i) Guarantors evidencing that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may befinancial covenants in Section 25(e) are enforceable against satisfied and such Satisfactory Replacement financial statements shall be certified by Individual Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to compiled by a securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan Documentscertified public accountant.
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Replacement Guarantor. To If at any time during the extent that any Guarantor is a natural person, the death or incapacity of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.5. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each term of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after the occurrence of such death or incapacityLoan, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, elects in connection with a Transfer (including, without limitation, certified financial statements detailing assets an Advised Entity Transfer), then (A) Borrower shall have the right to cause a Replacement Guarantor to execute and liabilities; (c) deliver a replacement Guaranty, PIP Guaranty and Environmental Indemnity substantially in the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery form of the written notice described Guaranty, PIP Guaranty or Environmental Indemnity, as applicable, or otherwise in the preceding clause form acceptable to Lender (bcollectively, a “Substitute Guaranty”), (B) under such Satisfactory Substitute Guaranty, Replacement Guarantor (i) assumes the shall assume all obligations of Guarantor under each of the Guaranty and the Environmental Indemnity for events or conditions occurring prior toGuaranty, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the PIP Guaranty and the Environmental Indemnity, respectively(C) Replacement Guarantor shall furnish to Lender all documents evidencing Replacement Guarantor’s organization and good standing, and otherwise reasonably acceptable the qualification of the signers to Lenderexecute the Substitute Guaranty and any other Loan Documents, for events or conditions occurring prior to, as which documents shall include certified copies of all documents relating to the organization and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory formation of Replacement Guarantor delivers and of the entities, if any, which are partners or members of Replacement Guarantor, and (D) Replacement Guarantor shall furnish to Lender a spousal consent in form New Non-Consolidation Opinion and substance acceptable an opinion of counsel satisfactory to Lender, as Lender and to the extent applicable, and its counsel (iiI) each of Borrower, the remaining Guarantor and/or such Satisfactory that Replacement Guarantor, as applicable, affirms each of their respective obligations under ’s formation documents provide for the Loan Documents; matters described in the foregoing clause (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other thingsC), (iII) that the substitution of the Replacement Guarantor has been duly authorized, executed and delivered, and that the Substitute Guaranty and the Environmental Indemnity (or the replacement guaranty other Loan Documents are valid, binding and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and terms, (iiIII) that Replacement Guarantor and any REMIC Trust formed pursuant to entity which is a securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning controlling stockholder, member or general partner of Section 860D of the Code or be subject to tax as a result of such Substitution; Replacement Guarantor have been duly organized, and (h) if required by Lenderare in existence and good standing, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan Documents.and 00000000.00.XXXXXXXX 121
Appears in 1 contract
Replacement Guarantor. To If at any time during the extent that any Guarantor is a natural person, the death or incapacity of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.5. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each term of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after the occurrence of such death or incapacityLoan, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, elects in connection with a Transfer (including, without limitation, certified financial statements detailing assets an Advised Entity Transfer), then (A) Borrower shall have the right to cause a Replacement Guarantor to execute and liabilities; (c) deliver a replacement Guaranty, PIP Guaranty and Environmental Indemnity substantially in the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery form of the written notice described Guaranty, PIP Guaranty or Environmental Indemnity, as applicable, or otherwise in the preceding clause form acceptable to Lender (bcollectively, a “Substitute Guaranty”), (B) under such Satisfactory Substitute Guaranty, Replacement Guarantor (i) assumes the shall assume all obligations of Guarantor under each of the Guaranty and the Environmental Indemnity for events or conditions occurring prior toGuaranty, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the PIP Guaranty and the Environmental Indemnity, respectively(C) Replacement Guarantor shall furnish to Lender all documents evidencing Replacement Guarantor’s organization and good standing, and otherwise reasonably acceptable the qualification of the signers to Lenderexecute the Substitute Guaranty and any other Loan Documents, for events or conditions occurring prior to, as which documents shall include certified copies of all documents relating to the organization and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory formation of Replacement Guarantor delivers and of the entities, if any, which are partners or members of Replacement Guarantor, and (D) Replacement Guarantor shall furnish to Lender a spousal consent in form New Non-Consolidation Opinion and substance acceptable an opinion of counsel satisfactory to Lender, as Lender and to the extent applicable, and its counsel (iiI) each of Borrower, the remaining Guarantor and/or such Satisfactory that Replacement Guarantor, as applicable, affirms each of their respective obligations under ’s formation documents provide for the Loan Documents; matters described in the foregoing clause (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other thingsC), (iII) that the substitution of the Replacement Guarantor has been duly authorized, executed and delivered, and that the Substitute Guaranty and the Environmental Indemnity (or the replacement guaranty other Loan Documents are valid, binding and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms terms, (III) that Replacement Guarantor and any entity which is a controlling stockholder, member or general partner of Replacement Guarantor have been duly organized, and are in existence and good standing, and (iiIV) that any REMIC Trust formed pursuant with respect to a securitization will not fail to maintain its status such other matters as a “real estate mortgage investment conduit” within Lender may reasonably request. Upon the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan Documents.execution and
Appears in 1 contract
Samples: Mezzanine B Loan Agreement (Ashford Hospitality Trust Inc)
Replacement Guarantor. To If at any time during the extent that any Guarantor is a natural person, the death or incapacity of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.5. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each term of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after the occurrence of such death or incapacityLoan, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, elects in connection with a Transfer (including, without limitation, certified financial statements detailing assets an Advised Entity Transfer), then (A) Borrower shall have the right to cause a Replacement Guarantor to execute and liabilities; (c) deliver a replacement Guaranty, PIP Guaranty and Environmental Indemnity substantially in the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery form of the written notice described Guaranty, PIP Guaranty or Environmental Indemnity, as applicable, or otherwise in the preceding clause form acceptable to Lender (bcollectively, a “Substitute Guaranty”), (B) under such Satisfactory Substitute Guaranty, Replacement Guarantor (i) assumes the shall assume all obligations of Guarantor under each of the Guaranty and the Environmental Indemnity for events or conditions occurring prior toGuaranty, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the PIP Guaranty and the Environmental Indemnity, respectively(C) Replacement Guarantor shall furnish to Lender all documents evidencing Replacement Guarantor’s organization and good standing, and otherwise reasonably acceptable the qualification of the signers to Lenderexecute the Substitute Guaranty and any other Loan Documents, for events or conditions occurring prior to, as which documents shall include certified copies of all documents relating to the organization and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory formation of Replacement Guarantor delivers and of the entities, if any, which are partners or members of Replacement Guarantor, and (D) Replacement Guarantor shall furnish to Lender a spousal consent in form New Non-Consolidation Opinion and substance acceptable an opinion of counsel satisfactory to Lender, as Lender and to the extent applicable, and its counsel (iiI) each of Borrower, the remaining Guarantor and/or such Satisfactory that Replacement Guarantor, as applicable, affirms each of their respective obligations under ’s formation documents provide for the Loan Documents; matters described in the foregoing clause (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other thingsC), (iII) that the substitution of the Replacement Guarantor has been duly authorized, executed and delivered, and that the Substitute Guaranty and the Environmental Indemnity (or the replacement guaranty other Loan Documents are valid, binding and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms terms, (III) that Replacement Guarantor and any entity which is a controlling stockholder, member or general partner of Replacement Guarantor have been duly organized, and are in existence and good standing, and (iiIV) with respect to such other matters as Lender may reasonably request. Upon the execution and delivery by such Replacement Guarantor of a Substitute Guaranty, Guarantor shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of delivery of such evidence, except to the extent that any REMIC Trust formed such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such delivery, whether or not discovered prior or subsequent to the date of such delivery, or were caused by such Guarantor or its Affiliates, provided that Guarantor shall bear the burden of proof to show that the event triggering liability under the Loan Documents first occurred after such transfer or ownership, was not the proximate result of events that first occurred prior to such transfer or ownership and was not caused by Guarantor or its Affiliates. In the event that Borrower replaces Guarantor with a Replacement Guarantor, Borrower shall deliver the financial statements of the Replacement Guarantor as required pursuant to a securitization will not fail Section 5.11 of this Agreement with respect to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan DocumentsGuarantor.
Appears in 1 contract
Samples: Mezzanine D Loan Agreement (Ashford Hospitality Trust Inc)
Replacement Guarantor. To If at any time during the extent that any Guarantor is a natural person, the death or incapacity of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.5. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each term of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after the occurrence of such death or incapacityLoan, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, elects in connection with a Transfer (including, without limitation, certified financial statements detailing assets an Advised Entity Transfer), then (A) Borrower shall have the right to cause a Replacement Guarantor to execute and liabilities; (c) deliver a replacement Guaranty, PIP Guaranty and Environmental Indemnity substantially in the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery form of the written notice described Guaranty, PIP Guaranty or Environmental Indemnity, as applicable, or otherwise in the preceding clause form acceptable to Lender (bcollectively, a “Substitute Guaranty”), (B) under such Satisfactory Substitute Guaranty, Replacement Guarantor (i) assumes the shall assume all obligations of Guarantor under each of the Guaranty and the Environmental Indemnity for events or conditions occurring prior toGuaranty, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the PIP Guaranty and the Environmental Indemnity, respectively(C) Replacement Guarantor shall furnish to Lender all documents evidencing Replacement Guarantor’s organization and good standing, and otherwise reasonably acceptable the qualification of the signers to Lenderexecute the Substitute Guaranty and any other Loan Documents, for events or conditions occurring prior to, as which documents shall include certified copies of all documents relating to the organization and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory formation of Replacement Guarantor delivers and of the entities, if any, which are partners or members of Replacement Guarantor, and (D) Replacement Guarantor shall furnish to Lender a spousal consent in form New Non-Consolidation Opinion and substance acceptable an opinion of counsel satisfactory to Lender, as Lender and to the extent applicable, and its counsel (iiI) each of Borrower, the remaining Guarantor and/or such Satisfactory that Replacement Guarantor, as applicable, affirms each of their respective obligations under ’s formation documents provide for the Loan Documents; matters described in the foregoing clause (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other thingsC), (iII) that the substitution of the Replacement Guarantor has been duly authorized, executed and delivered, and that the Substitute Guaranty and the Environmental Indemnity (or the replacement guaranty other Loan Documents are valid, binding and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms terms, (III) that Replacement Guarantor and any entity which is a controlling stockholder, member or general partner of Replacement Guarantor have been duly organized, and are in existence and good standing, and (iiIV) with respect to such other matters as Lender may reasonably request. Upon the execution and delivery by such Replacement Guarantor of a Substitute Guaranty, Guarantor shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of delivery of such evidence, except to the extent that any REMIC Trust formed such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such delivery, whether or not discovered prior or subsequent to the date of such delivery, or were caused by such Guarantor or its Affiliates, provided that Guarantor shall bear the burden of proof to show that the event triggering liability under the Loan Documents first occurred after such transfer or ownership, was not the proximate result of events that first occurred prior to such transfer or ownership and was not caused by Guarantor or its Affiliates. In the event that Borrower replaces Guarantor with a Replacement Guarantor, Borrower shall deliver the financial statements of the Replacement Guarantor as required pursuant to a securitization will not fail Section 5.11 of this Agreement with respect to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency OpinionGuarantor. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan Documents.00000000.0.XXXXXXXX 121
Appears in 1 contract
Samples: Mezzanine a Loan Agreement (Ashford Hospitality Trust Inc)
Replacement Guarantor. To Upon the extent that any occurrence of an NYROP Transfer, Borrower (I) may elect to replace Guarantor is or (II) shall replace Guarantor if, as a natural person, the death or incapacity result of such NYROP Transfer, Guarantor does not own any direct or indirect equity interests in Borrower, pursuant to the terms hereof with any Person (“Replacement Guarantor”), provided that Borrower shall only be an Event of Default hereunder unless permitted to replace such Guarantor is replaced if the following conditions are met: (i) such Replacement Guarantor (A) shall have a net worth (as calculated in accordance with this Section 10.5. Borrower GAAP) in excess of $20,000,000, and (B) shall be permitted assume the obligations of Guarantor under the Guaranty and under the Environmental Indemnity and, in connection therewith, shall execute, without any cost or expense to substitute Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption; (ii) Lender shall have received a replacement guarantor due formation, authorization, execution and enforceability opinion in connection with such documents and agreements executed by such Replacement Guarantor; and (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each of the following terms and conditions are satisfied: (aiii) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after continuing. Notwithstanding the occurrence of such death or incapacityforegoing, Borrower delivers no Person shall be deemed to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (c) the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery of the written notice described in the preceding clause (b), such Satisfactory be an acceptable Replacement Guarantor if such Person (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution any other Person owned or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events Controlled by such Person or conditions occurring prior to, as of and after the Substitution; (e) concurrently Affiliated with such assumption or execution and delivery Person) (i1) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lenderhas been, as and to within the extent applicable, and last ten (ii10) each of Borrower, the remaining Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other thingsyears, (iy) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to a securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result any material, uncured event of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered default in connection with a loan financing which resulted in litigation or an acceleration of an indebtedness held by Lender or any other secondary market or institutional lender of similar size and with similar operations as Lender or (z) the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities subject of any other Guarantor action or proceeding under applicable Creditors Rights Laws or (2) any of the Loan Documentsprincipals or entities which Control such Person or own a material direct or indirect equity interest in such Person have ever been convicted of a felony.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital New York Recovery Reit Inc)
Replacement Guarantor. To the extent that any Guarantor is a natural person, the death or incapacity of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.5. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within No less than thirty (30) days after prior to receipt by Buyer of Seller’s written notice, a replacement Person (“Replacement Guarantor”) may become Guarantor under the occurrence Transaction Documents, and shall be bound by, and entitled to, the benefits and obligations of such death this Agreement and the Transaction Documents as Guarantor, upon the satisfaction of the following conditions, each as determined by Buyer in its sole discretion: (i) the Replacement Guarantor is a limited liability company organized under the laws of the State of Delaware, (ii) the Replacement Guarantor is a direct or incapacityindirect wholly-owned subsidiary of TPG RE Finance Trust, Borrower delivers to Lender notice of its intent to substitute such Inc., (iii) the Replacement Guarantor andshall satisfy each covenant, concurrently therewith, gives Lender all such information concerning representation and warranty set forth in the proposed substitute guarantor as Lender may reasonably requireGuarantee Agreement, including, without limitation, certified the financial statements detailing assets covenants set forth in Section 9 of the Guarantee Agreement, (iv) Buyer shall have satisfactorily completed its legal, financial, “Know-Your-Customer”, OFAC and liabilities; (c) anti-money laundering diligence relating to the replacement guarantor is a Satisfactory Replacement Guarantor; , (dv) within fifteen (15) days after delivery Buyer shall have received customary secretary certificates and legal opinions, including as to the due formation, power and authority and good standing of the written notice described in Replacement Guarantor, no conflicts with organizational documents, no required consents, no violations of law, execution and delivery by the preceding clause Replacement Guarantor and the enforceability of the Replacement Guarantee Agreement against the Replacement Guarantor. On the date upon which the conditions set forth above are satisfied, and the Replacement Guarantor executes and delivers the Replacement Guarantee Agreement (bthe “Guarantor Substitution Date”), such Satisfactory the Replacement Guarantor (i) assumes shall be considered Guarantor for all purposes of this Agreement, and the obligations of Initial Guarantor shall be released as Guarantor under the Guaranty and Guarantee Agreement (except for those provisions which, by their terms, are expressly stated herein or in the Environmental Indemnity for events or conditions occurring prior toGuarantee Agreement to survive termination); provided, as that the execution of and after the Substitution or (ii) executes and delivers to Lender a any such replacement guaranty and shall not be deemed a replacement environmental indemnity in each case in form and substance novation of any liabilities or obligations under the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as Guarantee Agreement irrespective of and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lender, as and any parties’ knowledge thereof. Notwithstanding anything herein to the extent applicablecontrary, and (ii) each in the event of Borrower, the remaining Guarantor and/or such Satisfactory any Act of Insolvency with respect to Replacement Guarantor, as applicable, affirms each Initial Guarantor shall remain liable for any and all amounts of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other things, (i) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that during any REMIC Trust formed pursuant to a securitization will not fail to maintain its status as a “real estate mortgage investment conduitlook back” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor period under any of the Loan Documentsapplicable law.
Appears in 1 contract
Samples: Securities Contract Agreement (TPG RE Finance Trust, Inc.)
Replacement Guarantor. To Upon the extent that any occurrence of an ARC III Transfer, Borrower (I) may elect to replace Guarantor is or (II) shall replace Guarantor if, as a natural person, the death or incapacity result of such ARC III Transfer, Guarantor does not own any direct or indirect equity interests in Borrower, pursuant to the terms hereof with any Person (“Replacement Guarantor”), provided that Borrower shall only be an Event of Default hereunder unless permitted to replace such Guarantor is replaced if the following conditions are met: (i) such Replacement Guarantor (A) shall have a net worth (as calculated in accordance with this Section 10.5. Borrower GAAP) in excess of $50,000,000, (B) shall be permitted have Liquidity of no less than $4,000,000, and (C) shall (x) assume the obligations of Guarantor under the Guaranty and under the Environmental Indemnity and, in connection therewith, shall execute, without any cost or expense to substitute a replacement guarantor Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and (a “Substitution”y) and no Event shall agree in such documents in the foregoing clause (x) to maintain Liquidity in the minimum amount of Default shall be deemed to have occurred hereunder, provided that each $2,000,000 throughout the remainder of the following terms term of the Loan; (ii) Lender shall have received a due formation, authorization, execution and conditions are satisfied: enforceability opinion in connection with such documents and agreements executed by such Replacement Guarantor; and (aiii) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after continuing. Notwithstanding the occurrence of such death or incapacityforegoing, Borrower delivers no Person shall be deemed to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (c) the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery of the written notice described in the preceding clause (b), such Satisfactory be an acceptable Replacement Guarantor if such Person (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution any other Person owned or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events Controlled by such Person or conditions occurring prior to, as of and after the Substitution; (e) concurrently Affiliated with such assumption or execution and delivery Person) (i1) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lenderhas been, as and to within the extent applicable, and last ten (ii10) each of Borrower, the remaining Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other thingsyears, (iy) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to a securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result any material, uncured event of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered default in connection with a loan financing which resulted in litigation or an acceleration of an indebtedness held by Lender or any other secondary market or institutional lender of similar size and with similar operations as Lender or (z) the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities subject of any other Guarantor action or proceeding under applicable Creditors Rights Laws, (2) any of the Loan Documentsprincipals or entities which Control such Person or own a material direct or indirect equity interest in such Person have ever been convicted of a felony or (3) has not had a credit event that has caused or will cause a material adverse effect on its business.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Trust III, Inc.)
Replacement Guarantor. To the extent that any Guarantor is a natural person, the death or incapacity incompetency of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.56.16. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that (a) no other Event of Default hereunder or under any of the other Loan Documents has occurred and is then continuing; (b) each of the following terms and conditions are satisfied: satisfied (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (bi) within thirty (30) 30 days after the occurrence of such death or incapacityincompetency, Borrower delivers to Lender written notice of its intent to substitute such Guarantor andthe guarantor, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (cii) the replacement guarantor is a Satisfactory Replacement Guarantor; Guarantor (d) as defined below), within fifteen (15) 30 days after delivery of the written notice described in the preceding clause subclause (bi), such Satisfactory Replacement Guarantor (i) assumes the obligations of Guarantor hereunder and under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution or (ii) executes and delivers other Loan Documents in a manner acceptable to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnityits sole discretion, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as of and after the Substitution; (e) concurrently with such assumption or execution and delivery assumption, (iA) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to LenderSpousal Consent (as defined below), as and to the extent applicable, applicable and (iiB) each of Borrower, the remaining Guarantor and/or Borrower and such Satisfactory Replacement Guarantor, as applicable, Guarantor affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender Documents in a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably mam1er acceptable to Lender statingin its sole discretion, among other thingsand (v) prior to or concurrently with such assumption, (i) that the Guaranty as applicable, Lender receives such information, documentation and opinions as may be required by Lender in its sole discretion in connection with such assumption and the Environmental Indemnity foregoing (or the replacement guaranty and environmental indemnityincluding, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant without limitation, opinions relating to a securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such SubstitutionREMIC); and (hc) if required such substitution is pe1mitted by Lenderthen applicable REMIC Requirements. As used herein, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers term "Satisfactory Replacement Guarantor" shall mean a replacement guarantor that (1) is acceptable to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinderand the Rating Agencies, impair(2) acceptable to Lender in its sole discretion exercised in good faith, limit, terminate or effectuate a novation and (3) Controls Borrower and the day-to-day operations of the obligations or liabilities of any other Guarantor under any of the Loan DocumentsProperty.
Appears in 1 contract
Samples: Guaranty of Recourse Obligations (Lodging Fund REIT III, Inc.)
Replacement Guarantor. To If at any time during the extent that any Guarantor is a natural person, the death or incapacity of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.5. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each term of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after the occurrence of such death or incapacityLoan, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, elects in connection with a Transfer (including, without limitation, certified financial statements detailing assets an Advised Entity Transfer), then (A) Borrower shall have the right to cause a Replacement Guarantor to execute and liabilities; (c) deliver a replacement Guaranty, PIP Guaranty and Environmental Indemnity substantially in the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery form of the written notice described Guaranty, PIP Guaranty or Environmental Indemnity, as applicable, or otherwise in the preceding clause form acceptable to Lender (bcollectively, a “Substitute Guaranty”), (B) under such Satisfactory Substitute Guaranty, Replacement Guarantor (i) assumes the shall assume all obligations of Guarantor under each of the Guaranty and the Environmental Indemnity for events or conditions occurring prior toGuaranty, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the PIP Guaranty and the Environmental Indemnity, respectively(C) Replacement Guarantor shall furnish to Lender all documents evidencing Replacement Guarantor’s organization and good standing, and otherwise reasonably acceptable the qualification of the signers to Lenderexecute the Substitute Guaranty and any other Loan Documents, for events or conditions occurring prior to, as which documents shall include certified copies of all documents relating to the organization and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory formation of Replacement Guarantor delivers and of the entities, if any, which are partners or members of Replacement Guarantor, and (D) Replacement Guarantor shall furnish to Lender a spousal consent in form New Non-Consolidation Opinion and substance acceptable an opinion of counsel satisfactory to Lender, as Lender and to the extent applicable, and its counsel (iiI) each of Borrower, the remaining Guarantor and/or such Satisfactory that Replacement Guarantor, as applicable, affirms each of their respective obligations under ’s formation documents provide for the Loan Documents; matters described in the foregoing clause (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other thingsC), (iII) that the substitution of the Replacement Guarantor has been duly authorized, executed and delivered, and that the Substitute Guaranty and the Environmental Indemnity (or the replacement guaranty other Loan Documents are valid, binding and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms terms, (III) that Replacement Guarantor and any entity which is a controlling stockholder, member or general partner of Replacement Guarantor have been duly organized, and are in existence and good standing, and (iiIV) with respect to such other matters as Lender may reasonably request. Upon the execution and delivery by such Replacement Guarantor of a Substitute Guaranty, Guarantor shall be relieved of all liability under the Loan Documents for acts, events, conditions, or 00000000.0.XXXXXXXX 127 circumstances occurring or arising after the date of delivery of such evidence, except to the extent that any REMIC Trust formed such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such delivery, whether or not discovered prior or subsequent to the date of such delivery, or were caused by such Guarantor or its Affiliates, provided that Guarantor shall bear the burden of proof to show that the event triggering liability under the Loan Documents first occurred after such transfer or ownership, was not the proximate result of events that first occurred prior to such transfer or ownership and was not caused by Guarantor or its Affiliates. In the event that Borrower replaces Guarantor with a Replacement Guarantor, Borrower shall deliver the financial statements of the Replacement Guarantor as required pursuant to a securitization will not fail Section 5.11 of this Agreement with respect to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan DocumentsGuarantor.
Appears in 1 contract
Samples: Mezzanine C Loan Agreement (Ashford Hospitality Trust Inc)
Replacement Guarantor. To the extent that any Guarantor is a natural personfails to continue to satisfy the net worth requirement under the Guaranty, the death or incapacity of no such Guarantor failure shall be constitute an Event of Default hereunder unless such if Guarantor is replaced in accordance with this Section 10.57.6. Borrower shall be permitted to substitute a replacement guarantor (a “Guarantor Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; within ten (b) within thirty (3010) days after the occurrence of such death breach or incapacityviolation, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (cb) the replacement guarantor is a Satisfactory Replacement Guarantor; (dc) within fifteen thirty (1530) days after delivery of the written notice described in the preceding clause (b)such breach or violation, such Satisfactory Replacement Guarantor (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Guarantor Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as of and after the Guarantor Substitution; (ed) concurrently with such assumption or execution and delivery (i) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lender, as and to the extent applicable, and (ii) each of Borrower, the remaining Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (fe) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Guarantor Substitution; (gf) if required by LenderLender or the Rating Agencies, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender and acceptable to the Rating Agencies in their sole discretion stating, among other things, (ig) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to a securitization Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by LenderLender or the Rating Agencies, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement delivery of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan DocumentsNew Non Consolidation Opinion.
Appears in 1 contract
Samples: Loan Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Replacement Guarantor. To the extent that any Guarantor is a natural personfails to continue to satisfy the net worth requirement under the Guaranty, the death or incapacity of no such Guarantor failure shall be constitute an Event of Default hereunder unless such if Guarantor is replaced in accordance with this Section 10.57.6. Borrower shall be permitted to substitute a replacement guarantor (a “Guarantor Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; within ten (b) within thirty (3010) days after the occurrence of such death breach or incapacityviolation, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (cb) the replacement guarantor is a Satisfactory Replacement Guarantor; (dc) within fifteen thirty (1530) days after delivery of the written notice described in the preceding clause (b)after such breach or violation, such Satisfactory Replacement Guarantor (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Guarantor Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as of and after the Guarantor Substitution; (ed) concurrently with such assumption or execution and delivery (i) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lender, as and to the extent applicable, and (ii) each of Borrower, the remaining Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (fe) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Guarantor Substitution; (gf) if required by LenderLender or the Rating Agencies, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender and acceptable to the Rating Agencies in their sole discretion stating, among other things, (ig) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to a securitization Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by LenderLender or the Rating Agencies, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency Opinion. No such death or replacement delivery of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan DocumentsNew Non Consolidation Opinion.
Appears in 1 contract
Samples: Loan Agreement (Griffin Capital Essential Asset REIT, Inc.)
Replacement Guarantor. To the extent that any Guarantor is a natural person, the death or incapacity of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.56.4. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Substitution; (b) within thirty (30) days after the occurrence of such death or incapacity, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, gives Lender all such information concerning the proposed substitute guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilities; (c) the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen (15) days after delivery of the written notice described in the preceding clause (b), such Satisfactory Replacement Guarantor (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as of and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lender, as and to the extent applicable, and (ii) each of Borrower, the each remaining Guarantor and/or such Satisfactory Replacement Guarantor, as applicable, affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required by LenderLender or the Rating Agencies, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender and acceptable to the Rating Agencies in their sole discretion stating, among other things, (i) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor in accordance with their terms and (ii) that any REMIC Trust formed pursuant to a securitization Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Lender or the Rating Agencies and a Non-Consolidation Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency New Non-Consolidation Opinion. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan Documents.. As used herein, the term “Satisfactory Replacement Guarantor” shall mean a replacement guarantor that is acceptable to Lender, which determination shall be based upon, inter alia, (A) such replacement guarantor having (1) a direct or indirect ownership interest in Borrower, which is
Appears in 1 contract
Replacement Guarantor. To the extent that any Guarantor is a natural person, the death or incapacity incompetency of such Guarantor shall be an Event of Default hereunder unless such Guarantor is replaced in accordance with this Section 10.58.3. Borrower shall be permitted to substitute a replacement guarantor (a “Substitution”) and no Event of Default shall be deemed to have occurred hereunder, provided that each of the following terms and conditions are satisfied: (a) no Default or Event of Default shall have occurred and be continuing remain uncured or would occur as a result of such Substitution; (b) within thirty ninety (3090) days after the occurrence of such death or incapacityincompetency, Borrower delivers to Lender notice of its intent to substitute such Guarantor and, concurrently therewith, if the replacement guarantor is not the approved replacement guarantor under the Senior Loan, gives Lender all a certification that such information concerning replacement guarantor has a net worth in excess of $3,000,000, and if the proposed substitute remaining Guarantor can provide to Lender a certification that he has a net worth in excess of $5,000,000 and a reaffirmation of the Guaranty, then the existing Guarantor shall be deemed approved and no replacement guarantor as Lender may reasonably require, including, without limitation, certified financial statements detailing assets and liabilitiesshall be needed for the other Guarantor who has died or been adjudicated incapacitated; (c) the replacement guarantor is a Satisfactory Replacement Guarantor; (d) within fifteen thirty (1530) days after delivery of the written notice described in the preceding clause (b), such Satisfactory Replacement Guarantor (i) assumes the obligations of Guarantor under the Guaranty and the Environmental Indemnity for events or conditions occurring prior to, as of and after the Substitution or (ii) executes and delivers to Lender a replacement guaranty and a replacement environmental indemnity in each case in form and substance the same as the Guaranty and the Environmental Indemnity, respectively, and otherwise reasonably acceptable to Lender, for events or conditions occurring prior to, as of and after the Substitution; (e) concurrently with such assumption or execution and delivery (i) such Satisfactory Replacement Guarantor delivers to Lender a spousal consent in form and substance acceptable to Lender, as and to the extent applicable, and (ii) each of Borrower, the remaining Guarantor and/or and such Satisfactory Replacement Guarantor, as applicable, Guarantor affirms each of their respective obligations under the Loan Documents; (f) Borrower delivers to Lender a Rating Agency Confirmation with respect to such Substitution; (g) if required requested by Lender, Borrower delivers to Lender an opinion from counsel, and in form and substance, in each case reasonably acceptable to Lender stating, among other things, (i) that the Guaranty and the Environmental Indemnity (or the replacement guaranty and environmental indemnity, as the case may be) are enforceable against such Satisfactory Replacement Guarantor executes a replacement guaranty in accordance with their terms form and (ii) that any REMIC Trust formed pursuant to a securitization will not fail to maintain its status substance the same as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to tax as a result of such Substitution; and (h) if required by Lender, an Insolvency Opinion has previously been delivered in connection with the Loan, Borrower delivers to Lender a new Insolvency OpinionGuaranty. No such death or replacement of a Guarantor shall hinder, impair, limit, terminate or effectuate a novation of the obligations or liabilities of any other Guarantor under any of the Loan Documents. As used herein, the term “Satisfactory Replacement Guarantor” shall mean a replacement guarantor that meets the requirements set forth in this Section 8.3, provided, however, that if such replacement guarantor is deemed acceptable to Senior Lender, then such replacement guarantor shall be deemed acceptable to Lender.
Appears in 1 contract
