Sale of the Properties. (a) If the Non-Initiating Member (i) elects not to purchase the applicable Property(ies), (ii) fails to deliver timely an Initial Acceptance Notice to the Initiating Member together with the Initial Forced Sale Deposit on or before the expiration of the Initial Acceptance Period (time being of the essence) or (iii) fails to deliver timely a Second Acceptance Notice to the Initiating Member together with the Second Forced Sale Deposit on or before the expiration of the Second Acceptance Period (time being of the essence), then the NorthStar Member shall, notwithstanding anything to the contrary contained in this Agreement, be authorized to act for and on behalf of the Venture, without any further consent of any other Member, for purposes of executing, in the name of the Venture, any documents or instruments which the NorthStar Member deems necessary or appropriate to implement the sale of the applicable Property(ies) pursuant to this Section 10.03. The NorthStar Member shall consult with and keep the TFG Member closely informed of matters relating to the sale of the applicable Property(ies), including, without limitation, circulating to the TFG Member drafts of the contract(s) of sale and any written comments thereon made by the proposed purchaser(s). Within 30 days after the expiration of the Acceptance Period, the NorthStar Member shall cause the Venture to engage one or more Independent Sales Agent(s) selected by the NorthStar Member to market the applicable Property(ies) for sale, for a period (“Marketing Period”) of up to 180 days (which 180-day period shall commence following such 30-day period), in a manner designed to achieve the highest net cash sales price to the Venture (taking into account any difference in cost to the Venture of prepaying or defeasing any existing Mortgage Loan versus an assumption of any such Mortgage Loan by a proposed buyer) and seek to cause the Venture to enter into one or more Valid Contracts within the Marketing Period. The applicable Property(ies) may be marketed and sold to one or more unaffiliated third party purchasers either as a single Portfolio, in sub‑portfolios of fewer than all of the applicable Property(ies) or on an individual Property-by-Property basis, as the NorthStar Member determines in the exercise of its good faith business judgment is most likely to maximize the aggregate sales price for the applicable Property(ies) realized by the Venture. The commission to be paid to the Independent Sales Agent(s) shall not exceed a fair market, arms’ length commission for the sale of comparable senior housing facilities. Without limiting the authority granted to the NorthStar Member above, each Member shall cooperate in all reasonable respects with the Venture, the other Member and the Independent Sales Agent(s) (including, without limitation, in connection with the marketing of the applicable Property(ies) and by executing any documents which may be reasonably required) in order to effect the intent of, and consummate the transactions contemplated in, this Article 10. In addition, the Administrative Member shall provide all material information relating to the applicable Property(ies) and customary estoppel certificates that a third party purchaser reasonably requests and to
Appears in 1 contract
Samples: Limited Liability Company Agreement (NorthStar Healthcare Income, Inc.)
Sale of the Properties. In addition to any transfer of a Property after it has been released from the Lien of the Senior Loan Documents pursuant to the provisions of Section 2.5 of the Senior Loan Agreement and prepayment of the Loan in accordance with Section 2.4.2 hereof in an amount equal to the Release Amount for such Property or to a transfer of an Ownership Interest upon or after its release from the Lien of the Loan Documents in accordance with Section 2.5 or any transfer of a direct or indirect interest in any Borrower upon or after the release of the Ownership Interest in accordance with Section 2.5 (awhich transfers are permitted hereunder without restriction), Property Owners shall have a one-time-right to sell, assign, convey or transfer (but not mortgage, hypothecate or otherwise encumber or grant a security interest in) If legal or equitable title to all (but not fewer than all) of the NonProperties only if:
(A) after giving effect to the proposed transaction:
(1) the Properties will be owned by one or more Single Purpose Entities wholly owned by a Permitted Borrower Transferee, Pre-Initiating Member approved Transferee or such other entity (specifically approved in writing by both Senior Lender and each Rating Agency) (collectively, the “Assumption Property Owners”) (subject to Section 6.1(i)(ii)(E) herein) which will be owned fully by the First Mezzanine Borrower which will continue to be fully owned by the Borrower which will be in compliance with the representations, warranties and covenants contained in Section 4.1(bb) hereof (as if such transferee shall have remade all of such representations, warranties and covenants as of, and after giving effect to, the proposed transaction), and which shall have executed and delivered to the Senior Lender an assumption agreement and such other agreements as Senior Lender may reasonably request (collectively, the “Assumption Agreement”) in form and substance acceptable to Senior Lender, evidencing the proposed transferee’s agreement to abide and be bound by all the terms, covenants and conditions set forth in the Senior Loan Documents and all other outstanding obligations under the Senior Loan, together with such legal opinions and title insurance endorsements as may be reasonably requested by Senior Lender;
(2) one or more Acceptable Property Managers with respect to each Property shall continue to act as Property Manager for that Property pursuant to the existing Property Management Agreements or Acceptable Property Management Agreements; and
(3) no Event of Default shall have occurred and be continuing;
(B) the Assumption Agreement shall state the applicable transferee’s agreement to abide by and be bound by the terms in the Senior Loan Documents (or other loan documents to be delivered by such transferee, which shall contain terms substantially identical to the terms of the applicable Loan Documents) whenever arising, and Property Owners, and/or such transferee shall deliver such legal opinions and title insurance endorsements as may reasonably be requested by Senior Lender;
(C) upon execution of a contract for the sale of the Properties and not less than thirty (30) days prior to the date of such sale, Borrowers shall cause First Mezzanine Borrowers to cause Property Owners to submit notice of such sale to Lender. Borrowers shall submit to Lender, not less than ten (10) days prior to the date of such sale, the Assumption Agreement for the Properties subject to the proposed transfer for approval by Lender. In addition, Borrowers shall provide all other documentation Lender reasonably requires to be delivered by Borrowers in connection with such assumption, together with an Officer’s Certificate certifying that (i) elects not the assumption to purchase be effected will be effected in compliance with the applicable Property(ies), terms of this Agreement and (ii) fails to deliver timely an Initial Acceptance Notice to will not impair or otherwise adversely affect the Initiating Member together with the Initial Forced Sale Deposit on validity or before the expiration priority of the Initial Acceptance Period (time being Lien of the essencePledge;
(D) prior to any such transaction, the proposed transferee shall deliver to Lender an Officer’s Certificate stating that either (x) such transferee is an employee pension plan or other retirement arrangement or account that is subject to Title I of ERISA or is a Plan and the obligations under this Agreement are not, and the exercise of rights under this Agreement will not, constitute a non-exempt prohibited transaction; or (iiiy) fails to deliver timely the transferee is a Second Acceptance Notice to the Initiating Member together with the Second Forced Sale Deposit on or before the expiration “governmental plan” (as defined in Section 3(32) of the Second Acceptance Period (time being of the essenceERISA), then and the NorthStar Member shall, notwithstanding anything to the contrary contained in obligations under this Agreement, be authorized and the exercise of rights under this Agreement, do not and will not violate any applicable state statutes regulating investments by or fiduciary obligations with respect to act for governmental plans; or (z) the proposed transferee is not an Employee Benefit Plan or a “governmental plan” or a Plan, and on behalf (i) such proposed transferee is not subject to state statutes regulating investments by or fiduciary obligations with respect to “governmental plans” and (ii) the underlying assets of the Venture, without any further consent of any other Memberproposed transferee do not, for purposes of executingERISA, in the name constitute assets of the VentureEmployee Benefit Plans holding an equity interest in such proposed transferee;
(E) Such transfer shall either be (x) to a Pre-Approved Transferee, any documents or instruments which (y) subject to the NorthStar Member deems necessary or appropriate to implement Lender’s consent in its sole discretion;
(F) the sale terms of the applicable Property(iesSection 6.1(i)(v) pursuant to this Section 10.03. The NorthStar Member shall consult be complied with and keep the TFG Member closely informed of matters relating to the sale of the applicable Property(ies), including, without limitation, circulating to the TFG Member drafts of the contract(s) of sale and any written comments thereon made by the proposed purchaser(s). Within 30 days after the expiration of the Acceptance Period, the NorthStar Member Borrower shall cause the Venture transferee to engage one or more Independent Sales Agent(s) selected by the NorthStar Member deliver to market the applicable Property(ies) for sale, for a period (“Marketing Period”) of up to 180 days (which 180-day period shall commence following such 30-day period), in a manner designed to achieve the highest net cash sales price to the Venture (taking into account any difference in cost to the Venture of prepaying or defeasing any existing Mortgage Loan versus an assumption of any such Mortgage Loan by a proposed buyer) and seek to cause the Venture to enter into one or more Valid Contracts within the Marketing Period. The applicable Property(ies) may be marketed and sold to one or more unaffiliated third party purchasers either as a single Portfolio, in sub‑portfolios of fewer than all of the applicable Property(ies) or on an individual Property-by-Property basis, as the NorthStar Member determines in the exercise of Rating Agency that Lender requests its good faith business judgment is most likely to maximize the aggregate sales price organizational documents solely for the applicable Property(iespurpose of such Rating Agency confirming that such organizational documents comply with the single purpose bankruptcy remote entity requirements set forth herein;
(G) realized by Borrowers shall ensure that Lender shall have received the Venture. The commission to be paid to the Independent Sales Agent(s) shall not exceed a fair marketpayment of, arms’ length commission for the sale of comparable senior housing facilities. Without limiting the authority granted to the NorthStar Member aboveor reimbursement for, each Member shall cooperate in all reasonable respects costs and expenses incurred by Lender (and any servicer in connection with the Venture, the other Member and the Independent Sales Agent(sa Mezzanine Loan Securitization) in connection therewith (including, without limitation, reasonable attorneys’ fees and disbursements) from Property Owners;
(H) after giving effect to the proposed transaction, the Assumption Property Owners will be owned by one or more Single Purpose Entities (collectively, the “First Mezzanine Assumption Borrower”) which will be in connection compliance with the marketing representations, warranties and covenants contained in Section 4.1(bb) hereof (as if the First Mezzanine Assumption Borrower shall have remade all of the applicable Property(ies) such representations, warranties and by executing any documents which may be reasonably required) in order to effect the intent covenants as of, and consummate after giving effect to, the transactions contemplated inproposed transaction), which, First Mezzanine Assumption Borrower will be owned by one or more Single Purpose Entities (collectively, the “Second Mezzanine Assumption Borrower”) which will be in compliance with the representations, warranties and covenants contained in Section 4.1(bb) hereof (as if the Second Mezzanine Assumption Borrower shall have remade all of such representations, warranties and covenants as of, and after giving effect to, the proposed transaction) and which shall have executed and delivered to Lender a mezzanine loan assumption agreement and such other agreements as Lender may reasonably request (collectively, the “Mezzanine Assumption Agreement”), evidencing the Second Mezzanine Assumption Borrower’s first priority pledge to the Lender of its ownership interests in the First Mezzanine Assumption Borrowers and a first priority pledge to Lender by such affiliates of the Second Mezzanine Assumption Borrowers who hold the direct and indirect ownership interests in the First Mezzanine Assumption Borrowers as Lender shall reasonably require (with an effective new Eagle 9 UCC Title Policy with respect to such pledge and a Title Letter substantially in the form of the Title Letter delivered on the Closing Date each in a form reasonably satisfactory to Lender) and their agreement to comply with, perform and abide and be bound by, all the obligations, covenants, terms and conditions on the part of Borrowers and Pledgors (as defined in the Pledge) set forth in this Article 10Agreement, the Note, the Pledge and the other Loan Documents. In addition, the Administrative Member there shall provide all material information relating have been delivered to Lender, with respect to the applicable Property(ies) First Mezzanine Assumption Borrowers, such legal opinions and customary estoppel certificates that a third party purchaser other documentation as may be reasonably requests and torequested by Lender.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Strategic Hotel Capital Inc)
Sale of the Properties. (i) Unless the Mortgagor first obtains a release of the relevant Property or Properties from the Lien of this Mortgage in accordance with Article 44 hereof, the Mortgagor shall not sell, assign, convey, transfer or otherwise dispose of legal or equitable title to or any interest in all (or any) of the Properties unless after giving effect to the proposed transaction:
(a) If the NonProperties shall be directly owned by a Single Purpose Entity (including a tenancy-Initiating Member in-common among Single Purpose Entities under a tenancy-in-common agreement in substance the same in all material respects as a partnership agreement of a single-purpose partnership) which at the time of such transfer will be in compliance with the covenants contained in Sections 3.3 and 3.4 hereof and which has assumed in writing (i) elects not to purchase the applicable Property(ies), (ii) fails to deliver timely an Initial Acceptance Notice subject to the Initiating Member together terms of Article 38 hereof) and agreed to comply with all the Initial Forced Sale Deposit on or before terms, covenants and conditions set forth in this Mortgage, expressly including the expiration covenants contained in Sections 3.3 and 3.4 hereof, and each of the Initial Acceptance Period other Mortgage Security Documents;
(time being of the essenceb) one or (iii) fails to deliver timely a Second Acceptance Notice to the Initiating Member together with the Second Forced Sale Deposit on or before the expiration of the Second Acceptance Period (time being of the essence), then the NorthStar Member more Approved Control Parties shall, notwithstanding anything to individually or acting in concert, own directly or indirectly at least 51% of, and control, the contrary contained in this Agreement, be authorized to act for and on behalf of entity which directly owns the Venture, without any further consent of any other MemberProperties ("control" meaning, for purposes of executingthis Section 19.1 and Section 19.2, in primary responsibility to make all material decisions with respect to the name operation, management, financing and disposition of the VentureProperties, any documents rather than a beneficial ownership requirement, and without being compromised by the fact that responsibility for such day-to-day operating and management functions as are ordinarily handled by a property manager or instruments for leasing activities has been delegated by such controlling Person pursuant to an agreement in writing) provided, however, that at all times a Vornado Affiliate and/or a Permitted Owner shall own directly or indirectly at least 51% of, and control, the entity which directly owns the NorthStar Member deems necessary or appropriate to implement Properties,
(c) if the sale Manager and/or an Affiliate of the applicable Property(ies) pursuant to this Section 10.03. The NorthStar Member shall consult with and keep the TFG Member closely informed of matters relating to the sale Manager does not act as Manager of the applicable Property(ies), including, without limitation, circulating to the TFG Member drafts of the contract(s) of sale Properties and any written comments thereon made by the proposed purchaser(s). Within 30 days after the expiration of the Acceptance Period, the NorthStar Member shall cause the Venture to engage one or more Independent Sales Agent(sof the Mortgagors named herein does not own or control the transferee, then the Manager of the Property must be a reputable and experienced professional management company, having under management, at the time of the proposed transfer, at least 20 retail shopping centers comprising at least 8 million square feet;
(d) selected by no Event of Default shall have occurred and be continuing;
(e) if the NorthStar Member transfer results in a transfer of more than 49% of the direct or indirect ownership interests of any Borrower or Guarantor, a satisfactory non-consolidation opinion of counsel with respect to market the applicable Property(iestransferee and the owner of such transferee is provided to the Mortgagee and the Rating Agencies; and
(f) for saleif the Approval Control Party is an entity other than a Vornado Affiliate, for a period (“Marketing Period”) Rating Agency Confirmation shall have been obtained with respect to the proposed transfer. Any permitted transferee of up the Properties shall execute an assumption in the form of Exhibit F hereto, subject to 180 days (which 180-day period shall commence following such 30-day periodthe provisions of Article 38 hereof, of the obligations of the Mortgagor under this Mortgage. With respect to any transfer described in this Section 19.1(i), in a manner designed to achieve the highest net cash sales price Mortgagor shall pay to the Venture (taking into account any difference in cost to the Venture of prepaying or defeasing any existing Mortgage Loan versus Servicer an assumption fee of any such Mortgage Loan by a proposed buyer$5,000.
(ii) and seek to cause the Venture to enter into one The Mortgagor also may transfer or more Valid Contracts within the Marketing Period. The applicable Property(ies) may be marketed and sold to one dispose of Equipment which is being replaced or more unaffiliated third party purchasers either as a single Portfolio, in sub‑portfolios of fewer than all of the applicable Property(ies) or on an individual Property-by-Property basis, as the NorthStar Member determines in the exercise of its good faith business judgment which is most likely to maximize the aggregate sales price for the applicable Property(ies) realized by the Venture. The commission to be paid to the Independent Sales Agent(s) shall not exceed a fair market, arms’ length commission for the sale of comparable senior housing facilities. Without limiting the authority granted to the NorthStar Member above, each Member shall cooperate in all reasonable respects with the Venture, the other Member and the Independent Sales Agent(s) (including, without limitation, no longer necessary in connection with the marketing operation of the applicable Property(ies) Premises or of any Property free from the interest of the Mortgagee under this Mortgage, provided that such transfer or disposal will not adversely affect the value of such Property, will not materially impair the utility of the Premises of such Property, and by executing any documents which may be reasonably required) will not result in order to effect the intent a reduction or abatement of, and consummate the transactions contemplated in, this Article 10. In additionor right of offset against, the Administrative Member rentals payable under any Lease, in either case as a result thereof, and provided that any new Equipment acquired by the Mortgagor (and not so disposed of) shall provide all material information relating be subject to the applicable Property(ies) interest of the Mortgagee under this Mortgage unless leased to the Mortgagor. The Mortgagee shall, from time to time, upon receipt of an Officers' Certificate requesting the same and customary estoppel certificates confirming satisfaction of the conditions set forth above, execute a written instrument in form reasonably satisfactory to it to confirm that a third party purchaser reasonably requests and tosuch Equipment which is to be, or has been, sold or disposed of is free from the interest of the Mortgagee under this Mortgage.
Appears in 1 contract
Sale of the Properties. Upon and subject to the terms and conditions herein contained, Sellers agree to sell, transfer, assign and convey to Buyer, and Buyer agrees to purchase from Sellers each Seller’s interest in: (a) If the Non-Initiating Member Land, (ib) elects not to purchase the applicable Property(iesbuildings and other improvements, if any, located on the Land (the “Buildings”), and (iic) fails to deliver timely an Initial Acceptance Notice except to the Initiating Member together with the Initial Forced Sale Deposit on or before the expiration extent otherwise set forth herein, all of the Initial Acceptance Period (time being of the essence) or (iii) fails to deliver timely a Second Acceptance Notice to the Initiating Member together with the Second Forced Sale Deposit on or before the expiration of the Second Acceptance Period (time being of the essence)other tangible and intangible property owned by Sellers in, then the NorthStar Member shallon, notwithstanding anything to the contrary contained in this Agreementattached to, be authorized to act for appurtenant to, and on behalf of the Venture, without any further consent of any other Member, for purposes of executing, used in the name of operation or maintenance of, the Venture, any documents Land or instruments which the NorthStar Member deems necessary or appropriate to implement the sale of the applicable Property(ies) pursuant to this Section 10.03. The NorthStar Member shall consult with and keep the TFG Member closely informed of matters relating to the sale of the applicable Property(ies)Buildings, including, without limitation, circulating development rights and air rights, if any (collectively with the Land and the Buildings, the “Properties” and, each a “Property” or an “Individual Property”). The sale of the Properties shall include, without limitation, the following:
(a) Sellers’ interests as landlord under all leases, licenses and other occupancy agreements for space in the Buildings reflected in the tenant list attached as Exhibit B hereto (as the same may be amended, modified, renewed or extended in accordance with the terms of this Agreement, the “Leases”), together with all leases and other occupancy agreements relating to the TFG Member drafts Buildings entered into by Sellers after the Effective Date in accordance with the terms of this Agreement, to the extent the Leases do not expire or are not terminated prior to the Closing Date (as hereinafter defined) in accordance with the terms of this Agreement;
(b) Sellers’ interests, if any, in all refundable security deposits, whether in the form of cash, letters of credit or other security, and, except as provided herein, advance rental payments held by Sellers in connection with the Leases, received from the tenants listed in Exhibit B attached hereto together with all other tenants pursuant to leases and other occupancy agreements relating to the Buildings entered into by Sellers after the Effective Date in accordance with the terms of this Agreement (the “Tenants”), including all accrued interest thereon which Tenants are entitled to receive;
(c) Sellers’ interests, if any, in all licenses, permits, certificates, approvals, authorizations, variances and consents (collectively, the “Permits”) issued or granted by governmental and quasi-governmental bodies, officers and authorities exclusively in respect of the contract(sownership, occupancy, use and operation of the Land or the Buildings to the extent assignable;
(d) of sale Sellers’ interest in all maintenance, parking management, supply, and any written comments thereon made other service contracts (collectively, the “Service Contracts”), but specifically excluding property management agreements, which property management agreements shall be terminated, at or prior to Closing, by the proposed purchaser(s)Seller whose Property is affected by such property management agreements at such Seller’s sole cost and expense. Within 30 days after All Service Contracts that, to Seller’s knowledge, are not terminable at Closing, are indicated on Exhibit C. Except as provided below and subject to the expiration terms and conditions of this Agreement, Buyer shall purchase the Acceptance PeriodProperties subject to the Service Contracts and shall assume the obligations of Seller thereunder pursuant to the terms of an Assignment and Assumption Agreement, the NorthStar Member shall cause the Venture to engage form of which is set forth as Exhibit D. Service Contracts that affect one or more Independent Sales Agent(sproperties in addition to the Properties to be purchased by Buyer pursuant to this Agreement shall be terminated by Seller effective as of the Closing Date. During the Study Period, Buyer shall review the Service Contracts to determine which may be terminated by Seller prior to the Closing and which may not. Seller agrees to provide notices of termination on or prior to the Closing for each of the Service Contracts that are terminable and that Buyer designates in writing during the Study Period for termination; provided that in no event shall Seller be obligated to terminate Service Contracts relating to maintaining warranties in connection with the Buildings and other improvements or that were obtained in connection with the initial construction or installation. All termination fees, if any, arising out of a termination, shall be paid by Buyer at Closing;
(e) selected All contract rights related to any construction activities on the Properties, including improvements required by any Leases, but only to the NorthStar Member extent (i) assignable or transferable without penalty or payment by any of the Sellers (unless Buyer agrees to market the applicable Property(ies) assume responsibility for sale, for a period (“Marketing Period”) of up to 180 days (which 180-day period shall commence following such 30-day period), penalty or payment in a manner designed reasonably acceptable to achieve the highest net cash sales price to the Venture Sellers) and/or (taking into account any difference in cost to the Venture of prepaying ii) such contract rights are not being retained on a non-exclusive basis by or defeasing any existing Mortgage Loan versus an assumption on behalf of any such Mortgage Loan by a proposed buyer) and seek to cause the Venture to enter into one or more Valid Contracts within the Marketing Period. The applicable Property(ies) may be marketed and sold to one or more unaffiliated third party purchasers either as a single Portfolio, in sub‑portfolios of fewer than all of the applicable Property(ies) or on an individual Property-by-Property basisSellers for continuing development of Liberty Center III, as the NorthStar Member determines in the exercise of its good faith business judgment is most likely to maximize the aggregate sales price for the applicable Property(ies) realized by the Venture. The commission to be paid to the Independent Sales Agent(s) shall not exceed a fair market, arms’ length commission for the sale of comparable senior housing facilities. Without limiting the authority granted to the NorthStar Member above, each Member shall cooperate in all reasonable respects with the Venture, the other Member and the Independent Sales Agent(s) (including, without limitation, the following: construction contracts, architectural contracts, engineering contracts, and other agreements related to construction activities on the Properties that will remain in existence after the Closing (collectively, the “Construction Contracts”). Seller will assign to Buyer, and Buyer will assume from Seller, the Construction Contracts listed on Exhibit E pursuant to the terms of an Assignment and Assumption Agreement, the form of which is set forth as Exhibit D.
(f) all right, title and interest of Sellers in and to any unpaid award for any taking of all or part of the Land or the Buildings;
(g) all right, title and interest of Sellers in and to all assignable warranties and guaranties, if any with respect to the Land or the Buildings; and
(h) all right, title and interest of Sellers in and to machinery, tools, equipment, fixtures and other tangible property in, on, attached to, appurtenant to and used by Sellers solely in the operation or maintenance of, the Land or the Buildings which are owned by Sellers including, without limitation, all inventory, supplies, building materials, tools, machinery and equipment in the condition, and of the volume, as existing on the Closing Date, it being understood that such items may be in need of repair, and Seller shall have no obligation to repair the same (the “Personal Property”), and all right, title and interest of Sellers under all equipment leases relating to the operation or maintenance of the Land or Buildings, which equipment leases are listed on Exhibit F attached hereto (the “Equipment Leases”).
(i) Subject to the apportionment provisions of Article VI, the sale of the Properties shall exclude (i) all cash of any Seller (whether on hand or in bank accounts) other than the aforementioned unapplied security deposits, (ii) delinquent Tenant arrearages and accounts receivable as of the Closing Date, (iii) Sellers’ policies of title insurance, (iv) computer programs which are not related solely to the operation of the Properties or are not owned by Seller, (v) Sellers’ rights under this Agreement, (vi) all proprietary or licensed computer programs, (vii) all insurance proceeds with respect to events existing or occurring prior to, and other claims existing on, the Closing Date, other than the proceeds assigned to Buyer pursuant to Article XVI hereof, (viii) all bonds, letters of credit, deposits or similar assurances posted with governmental or quasi-governmental agencies or utility companies to secure performance of public improvements or payment obligations to utility companies, (ix) any items of personal property owned or leased (from anyone other than a Seller) by each Seller’s property manager and located in the property manager’s on-site or off-site property management office, (x) any items of personal property owned or leased (from anyone other than a Seller) by any Tenant at or on each Seller’s Property, and (xi) any Protected Information (as defined herein). Buyer shall be responsible at its sole cost and expense to post (and to pay the cost of) all bonds, deposits or similar assurances to be posted with governmental or quasi-governmental agencies or utility companies in connection with the marketing development, ownership, operation and maintenance of the applicable Property(iesProperty, as the same are listed on Schedule 1.1(i) and by executing attached hereto.
(j) Each Seller quitclaims to Buyer any documents which rights it may be reasonably required) in order have to effect use the intent ofnames “Xxxx Center”, “TransDulles Centre”, and consummate “Liberty Center”, and the transactions contemplated inrelated logos, this Article 10and Buyer shall have the non-exclusive right, together with other property owners, to use such names. In additionBuyer hereby acknowledges that Seller makes no representations or warranties concerning any patents, the Administrative Member shall provide all material information relating to the applicable Property(ies) and customary estoppel certificates that a third party purchaser reasonably requests and totrademarks, copyrights or other intellectual property rights.
Appears in 1 contract
Samples: Commercial Multi Property Agreement of Purchase and Sale (Duke Realty Corp)
Sale of the Properties. In addition to any transfer of a Property after it has been released from the Lien of the Senior Loan Documents pursuant to the provisions of Section 2.5 of the Senior Loan Agreement and prepayment of the Loan in accordance with Section 2.4.2 hereof in an amount equal to the Release Amount for such Property or to a transfer of an Ownership Interest upon or after its release from the Lien of the Loan Documents in accordance with Section 2.5 or any transfer of a direct or indirect interest in any Borrower upon or after the release of the Ownership Interest in accordance with Section 2.5 (awhich transfers are permitted hereunder without restriction), Property Owners shall have a one-time-right to sell, assign, convey or transfer (but not mortgage, hypothecate or otherwise encumber or grant a security interest in) If legal or equitable title to all (but not fewer than all) of the NonProperties only if:
(A) after giving effect to the proposed transaction:
(1) the Properties will be owned by one or more Single Purpose Entities wholly owned by a Permitted Borrower Transferee, Pre-Initiating Member approved Transferee or such other entity (specifically approved in writing by both Senior Lender and each Rating Agency) (collectively, the “Assumption Property Owners”) (subject to Section 6.1(i)(ii)(E) herein) which will be owned fully by Borrower, which will be in compliance with the representations, warranties and covenants contained in Section 4.1(bb) hereof (as if such transferee shall have remade all of such representations, warranties and covenants as of, and after giving effect to, the proposed transaction), and which shall have executed and delivered to the Senior Lender an assumption agreement and such other agreements as Senior Lender may reasonably request (collectively, the “Assumption Agreement”) in form and substance acceptable to Senior Lender, evidencing the proposed transferee’s agreement to abide and be bound by all the terms, covenants and conditions set forth in the Senior Loan Documents and all other outstanding obligations under the Senior Loan, together with such legal opinions and title insurance endorsements as may be reasonably requested by Senior Lender;
(2) one or more Acceptable Property Managers with respect to each Property shall continue to act as Property Manager for that Property pursuant to the existing Property Management Agreements or Acceptable Property Management Agreements; and
(3) no Event of Default shall have occurred and be continuing;
(B) the Assumption Agreement shall state the applicable transferee’s agreement to abide by and be bound by the terms in the Senior Loan Documents (or other loan documents to be delivered by such transferee, which shall contain terms substantially identical to the terms of the applicable Loan Documents) whenever arising, and Property Owners, and/or such transferee shall deliver such legal opinions and title insurance endorsements as may reasonably be requested by Senior Lender;
(C) upon execution of a contract for the sale of the Properties and not less than thirty (30) days prior to the date of such sale, Borrowers shall cause Property Owners to submit notice of such sale to Lender. Borrowers shall submit to Lender, not less than ten (10) days prior to the date of such sale, the Assumption Agreement for the Properties subject to the proposed transfer for approval by Lender. In addition, Borrowers shall provide all other documentation Lender reasonably requires to be delivered by Borrowers in connection with such assumption, together with an Officer’s Certificate certifying that (i) elects not the assumption to purchase be effected will be effected in compliance with the applicable Property(ies), terms of this Agreement and (ii) fails to deliver timely an Initial Acceptance Notice to will not impair or otherwise adversely affect the Initiating Member together with the Initial Forced Sale Deposit on validity or before the expiration priority of the Initial Acceptance Period (time being Lien of the essencePledge;
(D) prior to any such transaction, the proposed transferee shall deliver to Lender an Officer’s Certificate stating that either (x) such transferee is an employee pension plan or other retirement arrangement or account that is subject to Title I of ERISA or is a Plan and the obligations under this Agreement are not, and the exercise of rights under this Agreement will not, constitute a non-exempt prohibited transaction; or (iiiy) fails to deliver timely the transferee is a Second Acceptance Notice to the Initiating Member together with the Second Forced Sale Deposit on or before the expiration “governmental plan” (as defined in Section 3(32) of the Second Acceptance Period (time being of the essenceERISA), then and the NorthStar Member shall, notwithstanding anything to the contrary contained in obligations under this Agreement, be authorized and the exercise of rights under this Agreement, do not and will not violate any applicable state statutes regulating investments by or fiduciary obligations with respect to act for governmental plans; or (z) the proposed transferee is not an Employee Benefit Plan or a “governmental plan” or a Plan, and on behalf (i) such proposed transferee is not subject to state statutes regulating investments by or fiduciary obligations with respect to “governmental plans” and (ii) the underlying assets of the Venture, without any further consent of any other Memberproposed transferee do not, for purposes of executingERISA, in the name constitute assets of the VentureEmployee Benefit Plans holding an equity interest in such proposed transferee;
(E) Such transfer shall either be (x) to a Pre-Approved Transferee, any documents or instruments which (y) subject to the NorthStar Member deems necessary or appropriate to implement Lender’s consent in its sole discretion;
(F) the sale terms of the applicable Property(iesSection 6.1(i)(v) pursuant to this Section 10.03. The NorthStar Member shall consult be complied with and keep the TFG Member closely informed of matters relating to the sale of the applicable Property(ies), including, without limitation, circulating to the TFG Member drafts of the contract(s) of sale and any written comments thereon made by the proposed purchaser(s). Within 30 days after the expiration of the Acceptance Period, the NorthStar Member Borrower shall cause the Venture transferee to engage one or more Independent Sales Agent(s) selected by the NorthStar Member deliver to market the applicable Property(ies) for sale, for a period (“Marketing Period”) of up to 180 days (which 180-day period shall commence following such 30-day period), in a manner designed to achieve the highest net cash sales price to the Venture (taking into account any difference in cost to the Venture of prepaying or defeasing any existing Mortgage Loan versus an assumption of any such Mortgage Loan by a proposed buyer) and seek to cause the Venture to enter into one or more Valid Contracts within the Marketing Period. The applicable Property(ies) may be marketed and sold to one or more unaffiliated third party purchasers either as a single Portfolio, in sub‑portfolios of fewer than all of the applicable Property(ies) or on an individual Property-by-Property basis, as the NorthStar Member determines in the exercise of Rating Agency that Lender requests its good faith business judgment is most likely to maximize the aggregate sales price organizational documents solely for the applicable Property(iespurpose of such Rating Agency confirming that such organizational documents comply with the single purpose bankruptcy remote entity requirements set forth herein;
(G) realized by Borrowers shall ensure that Lender shall have received the Venture. The commission to be paid to the Independent Sales Agent(s) shall not exceed a fair marketpayment of, arms’ length commission for the sale of comparable senior housing facilities. Without limiting the authority granted to the NorthStar Member aboveor reimbursement for, each Member shall cooperate in all reasonable respects costs and expenses incurred by Lender (and any servicer in connection with the Venture, the other Member and the Independent Sales Agent(sa Mezzanine Loan Securitization) in connection therewith (including, without limitation, reasonable attorneys’ fees and disbursements) from Property Owners;
(H) after giving effect to the proposed transaction, the Assumption Property Owners will be owned by one or more Single Purpose Entities (collectively, the “Assumption Borrower”) which will be in connection compliance with the marketing representations, warranties and covenants contained in Section 4.1(bb) hereof (as if the Assumption Borrower shall have remade all of the applicable Property(ies) such representations, warranties and by executing any documents which may be reasonably required) in order to effect the intent covenants as of, and consummate after giving effect to, the transactions contemplated inproposed transaction), and which shall have executed and delivered to Lender a mezzanine loan assumption agreement and such other agreements as Lender may reasonably request (collectively, the “Mezzanine Assumption Agreement”), evidencing the Assumption Borrower’s first priority pledge to the Lender of its ownership interests in the Assumption Property Owners and a first priority pledge to Lender by such affiliates of the Assumption Borrowers who hold the direct and indirect ownership interests in the Assumption Borrowers as Lender shall reasonably require (with an effective new Eagle 9 UCC Title Policy with respect to such pledge and a Title Letter substantially in the form of the Title Letter delivered on the Closing Date each in a form reasonably satisfactory to Lender) and their agreement to comply with, perform and abide and be bound by, all the obligations, covenants, terms and conditions on the part of Borrowers and Pledgors (as defined in the Pledge) set forth in this Article 10Agreement, the Note, the Pledge and the other Loan Documents. In addition, the Administrative Member there shall provide all material information relating have been delivered to Lender, with respect to the applicable Property(ies) Assumption Property Owners, such legal opinions and customary estoppel certificates that a third party purchaser other documentation as may be reasonably requests and torequested by Lender.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Strategic Hotel Capital Inc)
Sale of the Properties. In addition to any transfer of a Property after it has been released from the Lien of the Transaction Documents pursuant to the provisions of Sections 2.4.5 and 2.5 (awhich transfers are permitted hereunder without restriction), Issuers and Operating Lessees shall have the one-time-right to sell, assign, convey or transfer (but not mortgage, hypothecate or otherwise encumber or grant a security interest in) If legal or equitable title to all (but not fewer than all) of the NonProperties only if:
(A) after giving effect to the proposed transaction:
(1) the Properties will be owned by one or more Single Purpose Entities wholly owned by a Permitted Issuer Transferee, Pre-Initiating Member approved Transferee or such other entity (specifically approved in writing by both a majority (by Outstanding Principal Amount) of the Noteholders and each Rating Agency) which will be in compliance with the representations, warranties and covenants contained in Section 4.1(bb) hereof (as if such transferee shall have remade all of such representations, warranties and covenants as of, and after giving effect to, the proposed transaction), and which shall have executed and delivered to Note Trustee an assumption agreement and such other agreements as Note Trustee may reasonably request (collectively, the "Assumption Agreement") in form and substance acceptable to Note Trustee, evidencing the proposed transferee's agreement to abide and be bound by all the terms, covenants and conditions set forth in this Indenture, the Notes, the Mortgages and the other Transaction Documents and all other outstanding obligations under the Notes, together with such legal opinions and title insurance endorsements as may be reasonably requested by Note Trustee;
(2) one or more Acceptable Property Managers with respect to each Property shall continue to act as Property Manager for that Property pursuant to the existing Property Management Agreements or Acceptable Property Management Agreements; and
(3) no Event of Default shall have occurred and be continuing;
(B) the Assumption Agreement shall state the applicable transferee's agreement to abide by and be bound by the terms in the Notes (or such other promissory notes to be executed by the transferee, such other promissory note or notes to be on the same terms as the Notes), the Mortgage, this Indenture (or such other agreements to be executed by such transferee, which shall contain terms substantially identical to the terms hereof) and such other Transaction Documents (or other documents to be delivered by such transferee, which shall contain terms substantially identical to the terms of the applicable Transaction Documents) whenever arising, and Issuers, and/or such transferee shall deliver such legal opinions and title insurance endorsements as may reasonably be requested by Note Trustee;
(C) upon execution of a contract for the sale of the Properties and not less than thirty (30) days prior to the date of such sale, Issuers shall submit notice of such sale to Note Trustee. Issuers shall submit to Note Trustee, not less than ten (10) days prior to the date of such sale, the Assumption Agreement for the Properties subject to the proposed transfer for execution by Note Trustee. Such documents shall be in a form appropriate for the jurisdictions in which the Properties are located and shall be reasonably satisfactory to Note Trustee. In addition, Issuers shall provide all other documentation Note Trustee reasonably requires to be delivered by Issuers and Operating Lessees in connection with such assumption, together with an Officer's Certificate certifying that (i) elects not the assumption to purchase be effected will be effected in compliance with the applicable Property(ies), terms of this Indenture and (ii) fails to deliver timely an Initial Acceptance Notice to will not impair or otherwise adversely affect the Initiating Member together with the Initial Forced Sale Deposit on validity or before the expiration priority of the Initial Acceptance Period (time being Lien of the essenceMortgages;
(D) prior to any such transaction, the proposed transferee shall deliver to Note Trustee an Officer's Certificate stating that either (x) such transferee is an employee pension plan or other retirement arrangement or account that is subject to Title I of ERISA or is a Plan and the obligations under this Indenture are not, and the exercise of rights under this Indenture will not, constitute a non-exempt prohibited transaction; or (iiiy) fails the transferee is a "governmental plan" (as defined in Section 3(32) of ERISA), and the obligations under this Indenture, and the exercise of rights under this Indenture, do not and will not violate any applicable state statutes regulating investments by or fiduciary obligations with respect to deliver timely governmental plans; or (z) the proposed transferee is not an Employee Benefit Plan or a Second Acceptance Notice "governmental plan" or a Plan, and (i) such proposed transferee is not subject to state statutes regulating investments by or fiduciary obligations with respect to "governmental plans" and (ii) the Initiating Member together with the Second Forced Sale Deposit on or before the expiration underlying assets of the Second Acceptance Period (time being of the essence), then the NorthStar Member shall, notwithstanding anything to the contrary contained in this Agreement, be authorized to act for and on behalf of the Venture, without any further consent of any other Memberproposed transferee do not, for purposes of executingERISA, in the name constitute assets of the VentureEmployee Benefit Plans holding an equity interest in such proposed transferee;
(E) if the transfer is to an entity other than a Pre-approved Transferee, any documents or instruments which a Rating Confirmation shall have been received in respect of such proposed transfer (or, if the NorthStar Member deems necessary or appropriate proposed transfer shall occur prior to implement a Securitization, such transfer shall be subject to the sale consent of a majority (by Outstanding Principal Amount) of the applicable Property(iesNoteholders in their sole discretion); provided, however, notwithstanding the foregoing, each of Issuer and Operating Lessee hereby agrees that if such proposed transfer is to a Pre-approved Transferee and such transfer will occur subsequent to the Payment Date in July 2006, such transfer shall also require Issuer and/or Operating Lessee to deliver to Note Trustee a Rating Confirmation in respect of such transfer;
(F) pursuant to this the terms of Section 10.03. The NorthStar Member 6.1(i)(v) shall consult be complied with and keep the TFG Member closely informed of matters relating to the sale of the applicable Property(ies), including, without limitation, circulating to the TFG Member drafts of the contract(s) of sale and any written comments thereon made by the proposed purchaser(s). Within 30 days after the expiration of the Acceptance Period, the NorthStar Member Issuer shall cause the Venture transferee to engage one or more Independent Sales Agent(s) selected by the NorthStar Member deliver to market the applicable Property(ies) for sale, for a period (“Marketing Period”) of up Standard & Poor's and to 180 days (which 180-day period shall commence following such 30-day period), in a manner designed to achieve the highest net cash sales price to the Venture (taking into account any difference in cost to the Venture of prepaying or defeasing any existing Mortgage Loan versus an assumption of any such Mortgage Loan by a proposed buyer) and seek to cause the Venture to enter into one or more Valid Contracts within the Marketing Period. The applicable Property(ies) may be marketed and sold to one or more unaffiliated third party purchasers either as a single Portfolio, in sub‑portfolios of fewer than all of the applicable Property(ies) or on an individual Property-by-Property basis, as the NorthStar Member determines in the exercise of other Rating Agency Note Trustee requests its good faith business judgment is most likely to maximize the aggregate sales price organizational documents solely for the applicable Property(iespurpose of Standard & Poor's and any other Rating Agency Note Trustee requests confirming that such organizational documents comply with the single purpose bankruptcy remote entity requirements set forth herein; and
(G) realized by Note Trustee and the Venture. The commission to be paid to Noteholders shall have received the Independent Sales Agent(s) shall not exceed a fair marketpayment of, arms’ length commission for the sale of comparable senior housing facilities. Without limiting the authority granted to the NorthStar Member aboveor reimbursement for, each Member shall cooperate in all reasonable respects costs and expenses incurred by Note Trustee (and any servicer in connection with the Venture, the other Member and the Independent Sales Agent(sa Securitization) in connection therewith (including, without limitation, in connection with the marketing of the applicable Property(ies) reasonable attorneys' fees and by executing any documents which may be reasonably required) in order to effect the intent of, and consummate the transactions contemplated in, this Article 10. In addition, the Administrative Member shall provide all material information relating to the applicable Property(ies) and customary estoppel certificates that a third party purchaser reasonably requests and todisbursements).
Appears in 1 contract
Sale of the Properties. In addition to any transfer of a Property after it has been released from the Lien of the Loan Documents pursuant to the provisions of Section 2.5 (a) If the Non-Initiating Member (i) elects not to purchase the applicable Property(ieswhich transfers are permitted hereunder without restriction), Borrowers and Operating Lessees shall have the one-time-right to sell, assign, convey or transfer (iibut not mortgage, hypothecate or otherwise encumber or grant a security interest in) fails legal or equitable title to deliver timely an Initial Acceptance Notice all (but not fewer than all) of the Properties only if:
(A) after giving effect to the Initiating Member together proposed transaction:
(1) the Properties will be owned by one or more Single Purpose Entities wholly owned by a Permitted Borrower Transferee, Pre-approved Transferee or such other entity (specifically approved in writing by both Lender and each Rating Agency) which will be in compliance with the Initial Forced Sale Deposit on or before representations, warranties and covenants contained in Section 4.1(bb) hereof (as if such transferee shall have remade all of such representations, warranties and covenants as of, and after giving effect to, the expiration of the Initial Acceptance Period (time being of the essence) or (iii) fails to deliver timely a Second Acceptance Notice to the Initiating Member together with the Second Forced Sale Deposit on or before the expiration of the Second Acceptance Period (time being of the essenceproposed transaction), then and which shall have executed and delivered to Lender an assumption agreement and such other agreements as Lender may reasonably request (collectively, the NorthStar Member shall“Assumption Agreement”) in form and substance acceptable to Lender, notwithstanding anything evidencing the proposed transferee’s agreement to abide and be bound by all the contrary contained terms, covenants and conditions set forth in this Agreement, the Notes, the Mortgages and the other Loan Documents and all other outstanding obligations under the Loan, together with such legal opinions and title insurance endorsements as may be authorized reasonably requested by Lender;
(2) one or more Acceptable Property Managers with respect to each Property shall continue to act as Property Manager for that Property pursuant to the existing Property Management Agreements or Acceptable Property Management Agreements; and
(3) no Event of Default shall have occurred and be continuing;
(B) the Assumption Agreement shall state the applicable transferee’s agreement to abide by and be bound by the terms in the Notes (or such other promissory notes to be executed by the transferee, such other promissory note or notes to be on behalf the same terms as the Notes), the Mortgage, this Agreement (or such other loan agreement to be executed by such transferee, which shall contain terms substantially identical to the terms hereof) and such other Loan Documents (or other loan documents to be delivered by such transferee, which shall contain terms substantially identical to the terms of the Ventureapplicable Loan Documents) whenever arising, without and Borrowers, and/or such transferee shall deliver such legal opinions and title insurance endorsements as may reasonably be requested by Lender;
(C) upon execution of a contract for the sale of the Properties and not less than thirty (30) days prior to the date of such sale, Borrowers shall submit notice of such sale to Lender. Borrowers shall submit to Lender, not less than ten (10) days prior to the date of such sale, the Assumption Agreement for the Properties subject to the proposed transfer for execution by Lender. Such documents shall be in a form appropriate for the jurisdictions in which the Properties are located and shall be reasonably satisfactory to Lender. In addition, Borrowers shall provide all other documentation Lender reasonably requires to be delivered by Borrowers and Operating Lessees in connection with such assumption, together with an Officer’s Certificate certifying that (i) the assumption to be effected will be effected in compliance with the terms of this Agreement and (ii) will not impair or otherwise adversely affect the validity or priority of the Lien of the Mortgages;
(D) prior to any further consent such transaction, the proposed transferee shall deliver to Lender an Officer’s Certificate stating that either (x) such transferee is an employee pension plan or other retirement arrangement or account that is subject to Title I of ERISA or is a Plan and the obligations under this Agreement are not, and the exercise of rights under this Agreement will not, constitute a non-exempt prohibited transaction; or (y) the transferee is a “governmental plan” (as defined in Section 3(32) of ERISA), and the obligations under this Agreement, and the exercise of rights under this Agreement, do not and will not violate any other Memberapplicable state statutes regulating investments by or fiduciary obligations with respect to governmental plans; or (z) the proposed transferee is not an Employee Benefit Plan or a “governmental plan” or a Plan, and (i) such proposed transferee is not subject to state statutes regulating investments by or fiduciary obligations with respect to “governmental plans” and (ii) the underlying assets of the proposed transferee do not, for purposes of executingERISA, in the name constitute assets of the VentureEmployee Benefit Plans holding an equity interest in such proposed transferee;
(E) if the transfer is to an entity other than a Pre-approved Transferee, any documents or instruments which a Rating Confirmation shall have been received in respect of such proposed transfer (or, if the NorthStar Member deems necessary or appropriate proposed transfer shall occur prior to implement a Securitization, such transfer shall be subject to Lender’s consent in its sole discretion); provided, however, notwithstanding the sale foregoing, Borrower hereby agrees that if such proposed transfer is to a Pre-approved Transferee and such transfer will occur subsequent to the Payment Date in May 2007, such transfer shall also require Borrower and/or Operating Lessee to deliver to Lender a Rating Confirmation in respect of such transfer;
(F) the applicable Property(iesterms of Section 6.1(i)(v) pursuant to this Section 10.03. The NorthStar Member shall consult be complied with and keep the TFG Member closely informed of matters relating to the sale of the applicable Property(ies), including, without limitation, circulating to the TFG Member drafts of the contract(s) of sale and any written comments thereon made by the proposed purchaser(s). Within 30 days after the expiration of the Acceptance Period, the NorthStar Member Borrower shall cause the Venture transferee to engage one or more Independent Sales Agent(s) selected by the NorthStar Member deliver to market the applicable Property(ies) for sale, for a period (“Marketing Period”) of up Standard & Poor’s and to 180 days (which 180-day period shall commence following such 30-day period), in a manner designed to achieve the highest net cash sales price to the Venture (taking into account any difference in cost to the Venture of prepaying or defeasing any existing Mortgage Loan versus an assumption of any such Mortgage Loan by a proposed buyer) and seek to cause the Venture to enter into one or more Valid Contracts within the Marketing Period. The applicable Property(ies) may be marketed and sold to one or more unaffiliated third party purchasers either as a single Portfolio, in sub‑portfolios of fewer than all of the applicable Property(ies) or on an individual Property-by-Property basis, as the NorthStar Member determines in the exercise of other Rating Agency Lender requests its good faith business judgment is most likely to maximize the aggregate sales price organizational documents solely for the applicable Property(iespurpose of Standard & Poor’s and any other Rating Agency Lender requests confirming that such organizational documents comply with the single purpose bankruptcy remote entity requirements set forth herein; and
(G) realized by Lender shall have received the Venture. The commission to be paid to the Independent Sales Agent(s) shall not exceed a fair marketpayment of, arms’ length commission for the sale of comparable senior housing facilities. Without limiting the authority granted to the NorthStar Member aboveor reimbursement for, each Member shall cooperate in all reasonable respects costs and expenses incurred by Lender (and any servicer in connection with the Venture, the other Member and the Independent Sales Agent(sa Securitization) in connection therewith (including, without limitation, in connection with the marketing of the applicable Property(ies) reasonable attorneys’ fees and by executing any documents which may be reasonably required) in order to effect the intent of, and consummate the transactions contemplated in, this Article 10. In addition, the Administrative Member shall provide all material information relating to the applicable Property(ies) and customary estoppel certificates that a third party purchaser reasonably requests and todisbursements).
Appears in 1 contract
Sale of the Properties. Upon and subject to the terms and conditions herein contained, Sellers agree to sell, transfer, assign and convey to Buyer, and Buyer agrees to purchase from Sellers each Seller’s interest in: (a) If the Non-Initiating Member Land, (ib) elects not to purchase the applicable Property(iesbuildings and other improvements, if any, located on the Land (the “Buildings”), and (iic) fails to deliver timely an Initial Acceptance Notice except to the Initiating Member together with the Initial Forced Sale Deposit on or before the expiration extent otherwise set forth herein, all of the Initial Acceptance Period (time being of the essence) or (iii) fails to deliver timely a Second Acceptance Notice to the Initiating Member together with the Second Forced Sale Deposit on or before the expiration of the Second Acceptance Period (time being of the essence)other tangible and intangible property owned by Sellers in, then the NorthStar Member shallon, notwithstanding anything to the contrary contained in this Agreementattached to, be authorized to act for appurtenant to, and on behalf of the Venture, without any further consent of any other Member, for purposes of executing, used in the name of operation or maintenance of, the Venture, any documents Land or instruments which the NorthStar Member deems necessary or appropriate to implement the sale of the applicable Property(ies) pursuant to this Section 10.03. The NorthStar Member shall consult with and keep the TFG Member closely informed of matters relating to the sale of the applicable Property(ies)Buildings, including, without limitation, circulating development rights and air rights, if any (collectively with the Land and the Buildings, the “Properties” and, each a “Property” or an “Individual Property”). The sale of the Properties shall include, without limitation, the following:
(a) Sellers’ interests as landlord under all leases, licenses and other occupancy agreements for space in the Buildings reflected in the tenant list attached as Exhibit B hereto (as the same may be amended, modified, renewed or extended in accordance with the terms of this Agreement, the “Leases”), together with all leases and other occupancy agreements relating to the TFG Member drafts Buildings entered into by Sellers after the Effective Date in accordance with the terms of this Agreement, to the extent the Leases do not expire or are not terminated prior to the Closing Date (as hereinafter defined) in accordance with the terms of this Agreement;
(b) Sellers’ interests, if any, in all refundable security deposits, whether in the form of cash, letters of credit or other security, and, except as provided herein, advance rental payments held by Sellers in connection with the Leases, received from the tenants listed in Exhibit B attached hereto together with all other tenants pursuant to leases and other occupancy agreements relating to the Buildings entered into by Sellers after the Effective Date in accordance with the terms of this Agreement (the “Tenants”), including all accrued interest thereon which Tenants are entitled to receive;
(c) Sellers’ interests, if any, in all licenses, permits, certificates, approvals, authorizations, variances and consents (collectively, the “Permits”) issued or granted by governmental and quasi-governmental bodies, officers and authorities exclusively in respect of the contract(sownership, occupancy, use and operation of the Land or the Buildings to the extent assignable;
(d) of sale Sellers’ interest in all maintenance, parking management, supply, and any written comments thereon made other service contracts (collectively, the “Service Contracts”), but specifically excluding property management agreements, which property management agreements shall be terminated, at or prior to Closing, by the proposed purchaser(s)Seller whose Property is affected by such property management agreements at such Seller’s sole cost and expense. Within 30 days after All Service Contracts that, to Seller’s knowledge, are not terminable at Closing, are indicated on Exhibit C. Except as provided below and subject to the expiration terms and conditions of this Agreement, Buyer shall purchase the Acceptance PeriodProperties subject to the Service Contracts and shall assume the obligations of Seller thereunder pursuant to the terms of an Assignment and Assumption Agreement, the NorthStar Member shall cause the Venture to engage form of which is set forth as Exhibit D. Service Contracts that affect one or more Independent Sales Agent(sproperties in addition to the Properties to be purchased by Buyer pursuant to this Agreement shall be terminated by Seller effective as of the Closing Date. During the Study Period, Buyer shall review the Service Contracts to determine which may be terminated by Seller prior to the Closing and which may not. Seller agrees to provide notices of termination on or prior to the Closing for each of the Service Contracts that are terminable and that Buyer designates in writing during the Study Period for termination; provided that in no event shall Seller be obligated to terminate Service Contracts relating to maintaining warranties in connection with the Buildings and other improvements or that were obtained in connection with the initial construction or installation. All termination fees, if any, arising out of a termination, shall be paid by Buyer at Closing;
(e) selected All contract rights related to any construction activities on the Properties, including improvements required by any Leases, but only to the NorthStar Member extent (i) assignable or transferable without penalty or payment by any of the Sellers (unless Buyer agrees to market the applicable Property(ies) assume responsibility for sale, for a period (“Marketing Period”) of up to 180 days (which 180-day period shall commence following such 30-day period), penalty or payment in a manner designed reasonably acceptable to achieve the highest net cash sales price to the Venture Sellers) and/or (taking into account any difference in cost to the Venture of prepaying ii) such contract rights are not being retained on a non-exclusive basis by or defeasing any existing Mortgage Loan versus an assumption on behalf of any such Mortgage Loan by a proposed buyer) and seek to cause the Venture to enter into one or more Valid Contracts within the Marketing Period. The applicable Property(ies) may be marketed and sold to one or more unaffiliated third party purchasers either as a single Portfolio, in sub‑portfolios of fewer than all of the applicable Property(ies) or on an individual Property-by-Property basisSellers for continuing development of Liberty Center III, as the NorthStar Member determines in the exercise of its good faith business judgment is most likely to maximize the aggregate sales price for the applicable Property(ies) realized by the Venture. The commission to be paid to the Independent Sales Agent(s) shall not exceed a fair market, arms’ length commission for the sale of comparable senior housing facilities. Without limiting the authority granted to the NorthStar Member above, each Member shall cooperate in all reasonable respects with the Venture, the other Member and the Independent Sales Agent(s) (including, without limitation, the following: construction contracts, architectural contracts, engineering contracts, and other agreements related to construction activities on the Properties that will remain in existence after the Closing (collectively, the “Construction Contracts”). Seller will assign to Buyer, and Buyer will assume from Seller, the Construction Contracts listed on Exhibit E pursuant to the terms of an Assignment and Assumption Agreement, the form of which is set forth as Exhibit D.
(f) all right, title and interest of Sellers in and to any unpaid award for any taking of all or part of the Land or the Buildings;
(g) all right, title and interest of Sellers in and to all assignable warranties and guaranties, if any with respect to the Land or the Buildings; and
(h) all right, title and interest of Sellers in and to machinery, tools, equipment, fixtures and other tangible property in, on, attached to, appurtenant to and used by Sellers solely in the operation or maintenance of, the Land or the Buildings which are owned by Sellers including, without limitation, all inventory, supplies, building materials, tools, machinery and equipment in the condition, and of the volume, as existing on the Closing Date, it being understood that such items may be in need of repair, and Seller shall have no obligation to repair the same (the “Personal Property”), and all right, title and interest of Sellers under all equipment leases relating to the operation or maintenance of the Land or Buildings, which equipment leases are listed on Exhibit F attached hereto (the “Equipment Leases”).
(i) Subject to the apportionment provisions of Article VI, the sale of the Properties shall exclude (i) all cash of any Seller (whether on hand or in bank accounts) other than the aforementioned unapplied security deposits, (ii) delinquent Tenant arrearages and accounts receivable as of the Closing Date, (iii) Sellers’ policies of title insurance, (iv) computer programs which are not related solely to the operation of the Properties or are not owned by Seller, (v) Sellers’ rights under this Agreement, (vi) all proprietary or licensed computer programs, (vii) all insurance proceeds with respect to events existing or occurring prior to, and other claims existing on, the Closing Date, other than the proceeds assigned to Buyer pursuant to Article XVI hereof, (viii) all bonds, letters of credit, deposits or similar assurances posted with governmental or quasi-governmental agencies or utility companies to secure performance of public improvements or payment obligations to utility companies, (ix) any items of personal property owned or leased (from anyone other than a Seller) by each Seller’s property manager and located in the property manager’s on-site or off-site property management office, (x) any items of personal property owned or leased (from anyone other than a Seller) by any Tenant at or on each Seller’s Property, and (xi) any Protected Information (as defined herein). Buyer shall be responsible at its sole cost and expense to post (and to pay the cost of) all bonds, deposits or similar assurances to be posted with governmental or quasi-governmental agencies or utility companies in connection with the marketing development, ownership, operation and maintenance of the applicable Property(iesProperty, as the same are listed on Schedule 1.1(i) and by executing attached hereto.
(j) Each Seller quitclaims to Buyer any documents which rights it may be reasonably required) in order have to effect use the intent ofnames “Mxxx Center”, “TransDulles Centre”, and consummate “Liberty Center”, and the transactions contemplated inrelated logos, this Article 10and Buyer shall have the non-exclusive right, together with other property owners, to use such names. In additionBuyer hereby acknowledges that Seller makes no representations or warranties concerning any patents, the Administrative Member shall provide all material information relating to the applicable Property(ies) and customary estoppel certificates that a third party purchaser reasonably requests and totrademarks, copyrights or other intellectual property rights.
Appears in 1 contract
Samples: Commercial Multi Property Agreement of Purchase and Sale (Duke Realty Limited Partnership/)
Sale of the Properties. In addition to any transfer of a Property after it has been released from the Lien of the Loan Documents pursuant to the provisions of Sections 2.4.5 and 2.5 (a) If the Non-Initiating Member (i) elects not to purchase the applicable Property(ieswhich transfers are permitted hereunder without restriction), Borrowers and Operating Lessees shall have the one-time-right to sell, assign, convey or transfer (iibut not mortgage, hypothecate or otherwise encumber or grant a security interest in) fails legal or equitable title to deliver timely an Initial Acceptance Notice all (but not fewer than all) of the Properties only if:
(A) after giving effect to the Initiating Member together proposed transaction:
(1) the Properties will be owned by one or more Single Purpose Entities wholly owned by a Permitted Borrower Transferee, Pre-approved Transferee or such other entity (specifically approved in writing by both Lender and each Rating Agency) which will be in compliance with the Initial Forced Sale Deposit on or before representations, warranties and covenants contained in Section 4.1(bb) hereof (as if such transferee shall have remade all of such representations, warranties and covenants as of, and after giving effect to, the expiration of the Initial Acceptance Period (time being of the essence) or (iii) fails to deliver timely a Second Acceptance Notice to the Initiating Member together with the Second Forced Sale Deposit on or before the expiration of the Second Acceptance Period (time being of the essenceproposed transaction), then and which shall have executed and delivered to Lender an assumption agreement and such other agreements as Lender may reasonably request (collectively, the NorthStar Member shall"Assumption Agreement") in form and substance acceptable to Lender, notwithstanding anything evidencing the proposed transferee's agreement to abide and be bound by all the contrary contained terms, covenants and conditions set forth in this Agreement, the Notes, the Mortgages and the other Loan Documents and all other outstanding obligations under the Loan, together with such legal opinions and title insurance endorsements as may be authorized reasonably requested by Lender;
(2) one or more Acceptable Property Managers with respect to each Property shall continue to act as Property Manager for that Property pursuant to the existing Property Management Agreements or Acceptable Property Management Agreements; and
(3) no Event of Default shall have occurred and be continuing;
(B) the Assumption Agreement shall state the applicable transferee's agreement to abide by and be bound by the terms in the Notes (or such other promissory notes to be executed by the transferee, such other promissory note or notes to be on behalf the same terms as the Notes), the Mortgage, this Agreement (or such other loan agreement to be executed by such transferee, which shall contain terms substantially identical to the terms hereof) and such other Loan Documents (or other loan documents to be delivered by such transferee, which shall contain terms substantially identical to the terms of the Ventureapplicable Loan Documents) whenever arising, without and Borrowers, and/or such transferee shall deliver such legal opinions and title insurance endorsements as may reasonably be requested by Lender;
(C) upon execution of a contract for the sale of the Properties and not less than thirty (30) days prior to the date of such sale, Borrowers shall submit notice of such sale to Lender. Borrowers shall submit to Lender, not less than ten (10) days prior to the date of such sale, the Assumption Agreement for the Properties subject to the proposed transfer for execution by Lender. Such documents shall be in a form appropriate for the jurisdictions in which the Properties are located and shall be reasonably satisfactory to Lender. In addition, Borrowers shall provide all other documentation Lender reasonably requires to be delivered by Borrowers and Operating Lessees in connection with such assumption, together with an Officer's Certificate certifying that (i) the assumption to be effected will be effected in compliance with the terms of this Agreement and (ii) will not impair or otherwise adversely affect the validity or priority of the Lien of the Mortgages;
(D) prior to any further consent such transaction, the proposed transferee shall deliver to Lender an Officer's Certificate stating that either (x) such transferee is an employee pension plan or other retirement arrangement or account that is subject to Title I of ERISA or is a Plan and the obligations under this Agreement are not, and the exercise of rights under this Agreement will not, constitute a non-exempt prohibited transaction; or (y) the transferee is a "governmental plan" (as defined in Section 3(32) of ERISA), and the obligations under this Agreement, and the exercise of rights under this Agreement, do not and will not violate any other Memberapplicable state statutes regulating investments by or fiduciary obligations with respect to governmental plans; or (z) the proposed transferee is not an Employee Benefit Plan or a "governmental plan" or a Plan, and (i) such proposed transferee is not subject to state statutes regulating investments by or fiduciary obligations with respect to "governmental plans" and (ii) the underlying assets of the proposed transferee do not, for purposes of executingERISA, in the name constitute assets of the VentureEmployee Benefit Plans holding an equity interest in such proposed transferee;
(E) if the transfer is to an entity other than a Pre-approved Transferee, any documents or instruments which a Rating Confirmation shall have been received in respect of such proposed transfer (or, if the NorthStar Member deems necessary or appropriate proposed transfer shall occur prior to implement a Securitization, such transfer shall be subject to Lender's consent in its sole discretion); provided, however, notwithstanding the sale foregoing, each of Borrower and Operating Lessee hereby agrees that if such proposed transfer is to a Pre-approved Transferee and such transfer will occur subsequent to the applicable Property(iesPayment Date in June 2006, such transfer shall also require Borrower and/or Operating Lessee to deliver to Lender a Rating Confirmation in respect of such transfer;
(F) pursuant to this the terms of Section 10.03. The NorthStar Member 6.1(i)(v) shall consult be complied with and keep the TFG Member closely informed of matters relating to the sale of the applicable Property(ies), including, without limitation, circulating to the TFG Member drafts of the contract(s) of sale and any written comments thereon made by the proposed purchaser(s). Within 30 days after the expiration of the Acceptance Period, the NorthStar Member Borrower shall cause the Venture transferee to engage one or more Independent Sales Agent(s) selected by the NorthStar Member deliver to market the applicable Property(ies) for sale, for a period (“Marketing Period”) of up Standard & Poor's and to 180 days (which 180-day period shall commence following such 30-day period), in a manner designed to achieve the highest net cash sales price to the Venture (taking into account any difference in cost to the Venture of prepaying or defeasing any existing Mortgage Loan versus an assumption of any such Mortgage Loan by a proposed buyer) and seek to cause the Venture to enter into one or more Valid Contracts within the Marketing Period. The applicable Property(ies) may be marketed and sold to one or more unaffiliated third party purchasers either as a single Portfolio, in sub‑portfolios of fewer than all of the applicable Property(ies) or on an individual Property-by-Property basis, as the NorthStar Member determines in the exercise of other Rating Agency Lender requests its good faith business judgment is most likely to maximize the aggregate sales price organizational documents solely for the applicable Property(iespurpose of Standard & Poor's and any other Rating Agency Lender requests confirming that such organizational documents comply with the single purpose bankruptcy remote entity requirements set forth herein; and
(G) realized by Lender shall have received the Venture. The commission to be paid to the Independent Sales Agent(s) shall not exceed a fair marketpayment of, arms’ length commission for the sale of comparable senior housing facilities. Without limiting the authority granted to the NorthStar Member aboveor reimbursement for, each Member shall cooperate in all reasonable respects costs and expenses incurred by Lender (and any servicer in connection with the Venture, the other Member and the Independent Sales Agent(sa Securitization) in connection therewith (including, without limitation, in connection with the marketing of the applicable Property(ies) reasonable attorneys' fees and by executing any documents which may be reasonably required) in order to effect the intent of, and consummate the transactions contemplated in, this Article 10. In addition, the Administrative Member shall provide all material information relating to the applicable Property(ies) and customary estoppel certificates that a third party purchaser reasonably requests and todisbursements).
Appears in 1 contract
