Common use of TIC ASSUMPTION Clause in Contracts

TIC ASSUMPTION. Notwithstanding the foregoing provisions of this PARAGRAPH 15, Lender shall not withhold its consent to a transfer of an undivided tenant-in-common interest in the Property and partial assumption of this Loan (hereinafter, a "TIC ASSUMPTION"), provided that each of the following terms and conditions are satisfied: (i) Borrower is in compliance with all terms and conditions of the Loan Documents and no Event of Default has occurred and is then continuing hereunder or under any of the other Loan Documents and the proposed transferee ("TRANSFEREE") agrees to continue to comply with and be bound by all provisions of the Loan Documents; (ii) Borrower gives Lender written notice of the terms of such prospective TIC Assumption not less than thirty (30) days before the date on which such TIC Assumption is scheduled to take place and, concurrently therewith, gives Lender all such information concerning Transferee as Lender reasonably requests; (iii) Borrower shall pay Lender (A) in connection with such proposed TIC Assumption, all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees incurred by Lender and any rating agency approval fees (whether such transfer is approved or rejected) plus (B) concurrently with the closing of such TIC Assumption, a nonrefundable assumption fee in an amount equal to the greater of (A) $5,000.00, or (B) 1% of such Transferee's proportionate share of the Principal Amount (based on such Transferee's tenancy in common interest in the Property), provided, however, with respect to TIC Assumptions closed on or before the earlier of the date that is one hundred eighty (180) days of the date hereof and the maturity date of the Concurrent Subordinate Indebtedness, such nonrefundable assumption fee shall equal the lesser of (A) $1,000.00 per Transferee, or (B) $7,000; (iv) Transferee executes and delivers such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may reasonably require, including, without limitation, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the TIC Assumption, all in form and substance satisfactory to Lender, including, without limitation, an endorsement or endorsements to Lender's loan title insurance policy insuring the lien of this Mortgage, extending the effective date of such policy to the date of execution and delivery of the assumption agreement referenced in this SUBPARAGRAPH 15(C)(IV), with no additional exceptions added to such policy, except for items consented to by Lender or permitted under this Mortgage, and insuring that Transferee's proportionate interest in the fee simple title to the Property is vested in the Transferee; (v) the transferring Borrower executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the other security documents through and including the date of the closing of the TIC Assumption, which agreement shall be in form and substance satisfactory to Lender and shall be binding upon the Transferee; (vi) subject to the provisions of PARAGRAPH 11 of the Note, such TIC Assumption is not construed so as to relieve the transferring Borrower of any personal liability under the Note or any of the Loan Documents for any act or events occurring or obligations arising prior to or simultaneously with the closing of such TIC Assumption (excluding payment of the principal amount of the Note and interest accrued thereon) and the transferring Borrower executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of such personal liability; (vii) Transferee shall furnish, if Transferee is a corporation, partnership or other entity, all appropriate papers evidencing Transferee's capacity in good standing and the qualification of the signers to execute the assumption of the Obligations, which paper shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners, members or shareholders of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be) as Lender shall require, shall be single purpose entities, whose formation documents shall be approved by counsel to Lender. Transferee must comply with the provisions of PARAGRAPH 17 hereof; (viii) Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel stating that (A) Transferee's formation documents provide proof for the matters described in SUBPARAGRAPH (VII) above, (B) the assets of Transferee will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Transferee, in the event of a bankruptcy or insolvency of any such entity if required by any rating agency after the securitization of the Loan, (C) the assumption of the Obligations has been duly authorized, executed and delivered and the Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (D) Transferee and any entity which is a controlling stockholder, general partner or managing member of Transferee have been duly organized and are in good standing and in existence, (E) the waiver of the right to partition the Property is enforceable against Transferee, and (F) with respect to such other matters as Lender or any applicable rating agency may request; (ix) if the Loan has previously been securitized pursuant to PARAGRAPH 43, Lender shall have received evidence in writing from the rating agencies to the effect the proposed transfer will not result in a downgrade, qualification, reduction or withdrawal of any rating initially assigned or to be assigned to any securities issued in connection with the Loan; and (x) Notwithstanding the foregoing or any of the provisions of the Loan Documents to the contrary, a Transferee must meet all of the following conditions: (A) the owner(s) of all of the ownership interests in a Transferee must be an " Accredited Investor" as defined in Rule 501 of Regulation D of the Securities Act of 1933, and Transferee and/or its principals must have a Beacon/FICO score of not less than 650; (B) neither a Transferee nor the owner(s) of any of the ownership interests in a Transferee shall have (1) been a party to any bankruptcy proceedings, voluntary or involuntary, (2) made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors, (3) defaulted on any indebtedness, (4) owned any property which was subject to foreclosure or attachment proceedings,

TIC ASSUMPTION. Notwithstanding the foregoing provisions of this PARAGRAPH Paragraph 15, Lender shall not withhold its consent to a transfer of an undivided tenant-in-common interest in the Property and partial assumption of this Loan (hereinafter, a "“TIC ASSUMPTION"Assumption”), provided that each of the following terms and conditions are satisfied: (i) Borrower is in compliance with all terms and conditions of the Loan Documents and no Event of Default has occurred and is then continuing hereunder or under any of the other Loan Documents and the proposed transferee ("TRANSFEREE"“Transferee”) agrees to continue to comply with and be bound by all provisions of the Loan Documents; (ii) Borrower gives Lender written notice of the terms of such prospective TIC Assumption not less than thirty (30) days before the date on which such TIC Assumption is scheduled to take place and, concurrently therewith, gives Lender all such information concerning Transferee as Lender reasonably requests; (iii) Borrower shall pay Lender (A) in connection with such proposed TIC Assumption, all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' ’ fees incurred by Lender and any rating agency approval fees (whether such transfer is approved or rejected) plus (B) concurrently with the closing of such TIC Assumption, a nonrefundable assumption fee in an amount equal to the greater of (A) $5,000.00, or (B) 1% of such Transferee's ’s proportionate share of the Principal Amount (based on such Transferee's ’s tenancy in common interest in the Property), provided, however, with respect to TIC Assumptions closed on or before the earlier of the date that is one hundred eighty (180) days of the date hereof and the maturity date of the Concurrent Subordinate Indebtedness, such nonrefundable assumption fee shall equal the lesser of (A) $1,000.00 per Transferee, or (B) $7,000; (iv) Transferee executes and delivers such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may reasonably require, including, without limitation, hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the TIC Assumption, all in form and substance satisfactory to Lender, including, without limitation, an endorsement or endorsements to Lender's ’s loan title insurance policy insuring the lien of this Mortgage, extending the effective date of such policy to the date of execution and delivery of the assumption agreement referenced in this SUBPARAGRAPH 15(C)(IVsubparagraph 15(c)(iv), with no additional exceptions added to such policy, except for items consented to by Lender or permitted under this Mortgage, and insuring that Transferee's ’s proportionate interest in the fee simple title to the Property is vested in the Transferee; (v) the transferring Borrower executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the other security documents through and including the date of the closing of the TIC Assumption, which agreement shall be in form and substance satisfactory to Lender and shall be binding upon the Transferee; (vi) subject to the provisions of PARAGRAPH Paragraph 11 of the Note, such TIC Assumption is not construed so as to relieve the transferring Borrower of any personal liability under the Note or any of the Loan Documents for any act or events occurring or obligations arising prior to or simultaneously with the closing of such TIC Assumption (excluding payment of the principal amount of the Note and interest accrued thereon) and the transferring Borrower executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of such personal liability; (vii) Transferee shall furnish, if Transferee is a corporation, partnership or other entity, all appropriate papers evidencing Transferee's ’s capacity in good standing and the qualification of the signers to execute the assumption of the Obligations, which paper shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners, members or shareholders of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be) as Lender shall require, shall be single purpose entities, whose formation documents shall be approved by counsel to Lender. Transferee must comply with the provisions of PARAGRAPH Paragraph 17 hereof; (viii) Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel stating that (A) Transferee's ’s formation documents provide proof for the matters described in SUBPARAGRAPH subparagraph (VIIvii) above, (B) the assets of Transferee will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Transferee, in the event of a bankruptcy or insolvency of any such entity if required by any rating agency after the securitization of the Loan, (C) the assumption of the Obligations has been duly authorized, executed and delivered and the Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (D) Transferee and any entity which is a controlling stockholder, general partner or managing member of Transferee have been duly organized and are in good standing and in existence, (E) the waiver of the right to partition the Property is enforceable against Transferee, and (F) with respect to such other matters as Lender or any applicable rating agency may request; (ix) if the Loan has previously been securitized pursuant to PARAGRAPH Paragraph 43, Lender shall have received evidence in writing from the rating agencies to the effect the proposed transfer will not result in a downgrade, qualification, reduction or withdrawal of any rating initially assigned or to be assigned to any securities issued in connection with the Loan; and (x) Notwithstanding the foregoing or any of the provisions of the Loan Documents to the contrary, a Transferee must meet all of the following conditions: (A) the owner(s) of all of the ownership interests in a Transferee must be an " “ Accredited Investor" ” as defined in Rule 501 of Regulation D of the Securities Act of 1933, and Transferee and/or its principals must have a Beacon/FICO score of not less than 650; (B) neither a Transferee nor the owner(s) of any of the ownership interests in a Transferee shall have (1) been a party to any bankruptcy proceedings, voluntary or involuntary, (2) made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors, (3) defaulted on any indebtedness, (4) owned any property which was subject to foreclosure or attachment proceedings,, (5) been a target of, or party to, any criminal investigation or proceeding, (6) been a party to any threatened or pending litigation or (7) any outstanding judgments; (C) intentionally deleted; (D) there shall be no material convictions, judgments, litigation or regulatory action pending or threatened against Transferee, Transferee’s principals or related entities which is not reasonably acceptable to Lender, and none of Transferee, Transferee’s principals or such related entities shall be on any so-called prohibited persons lists; (E) other than with respect to transfers by the initial Borrower hereunder, the transfer (1) must be for the entire interest of a Tenant in Common in the Property (or 100% of the ownership interests in a Tenant in Common), and (2) can only be made to a single new Tenant in Common. In no event may any such transfer result in “Borrower” being comprised of more than the number of co-owners set forth in Revenue Procedure 2002-22, I.R.B. 2002-14, as such pronouncement may be modified from time to time (which number is thirty five [35] as of the date hereof); (F) Transferee, Transferee’s principals and the related entities shall not have defaulted under its or their obligations with respect to any other indebtedness in a manner which is not acceptable to Lender; and (G) Transferee, Transferee’s principals and the related entities must have demonstrated expertise in owning and operating real estate investment property, which expertise shall be reasonably determined by Lender. Any such TIC Assumption shall not be construed as to relieve any current Guarantors of their obligations under any guarantees or indemnity agreements executed in connection with the Note, provided that if Transferee or a party associated with Transferee approved by Lender in its sole discretion assumes the obligations of the current Guarantors under their guarantees or indemnity agreements and Transferee or such party associated with Transferee if applicable, executes, without any cost or expense to Lender, a new guarantee and/or indemnity agreement in form and substance satisfactory to Lender, then Lender shall release the current Guarantors from all obligations first arising under their guarantees or indemnity agreements after the closing of such TIC Assumption;

TIC ASSUMPTION. Notwithstanding the foregoing provisions of this PARAGRAPH Paragraph 15, Lender Beneficiary shall not withhold its consent to a transfer of an undivided tenant-in-common interest in the Property and partial assumption of this Loan (hereinafter, a "“TIC ASSUMPTION"Assumption”), provided that each of the following terms and conditions are satisfied: (i) Borrower Grantor is in compliance with all terms and conditions of the Loan Documents and no Event of Default has occurred and is then continuing hereunder or under any of the other Loan Documents and the proposed transferee ("TRANSFEREE"“Transferee”) agrees to continue to comply with and be bound by all provisions of the Loan Documents; (ii) Borrower Grantor gives Lender Beneficiary written notice of the terms of such prospective TIC Assumption not less than thirty (30) days before the date on which such TIC Assumption is scheduled to take place and, concurrently therewith, gives Lender Beneficiary all such information concerning Transferee as Lender Beneficiary reasonably requests; (iii) Borrower Grantor shall pay Lender Beneficiary (A) in connection with such proposed TIC Assumption, all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' ’ fees incurred by Lender Beneficiary and any rating agency approval fees (whether such transfer is approved or rejected) plus (B) concurrently with the closing of such TIC Assumption, a nonrefundable assumption fee in an amount equal to the greater of (A) $5,000.00, or (B) 1% of such Transferee's ’s proportionate share of the Principal Amount (based on such Transferee's ’s tenancy in common interest in the Property), provided, however, with respect to TIC Assumptions closed on or before the earlier of the date that is one hundred eighty (180) days of the date hereof and the maturity date of the Concurrent Subordinate Indebtedness, such nonrefundable assumption fee shall equal the lesser of (A) $1,000.00 per Transferee, or (B) $7,000; (iv) Transferee executes and delivers such documents and agreements as Lender Beneficiary shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender Beneficiary may reasonably require, including, without limitation, hazard insurance endorsements or certificates and other similar materials as Lender Beneficiary may deem necessary at the time of the TIC Assumption, all in form and substance satisfactory to LenderBeneficiary, including, without limitation, an endorsement or endorsements to Lender's Beneficiary’s loan title insurance policy insuring the lien of this MortgageDeed of Trust, extending the effective date of such policy to the date of execution and delivery of the assumption agreement referenced in this SUBPARAGRAPH 15(C)(IVsubparagraph 15(c)(iv), with no additional exceptions added to such policy, except for items consented to by Lender Beneficiary or permitted under this MortgageDeed of Trust, and insuring that Transferee's ’s proportionate interest in the fee simple title to the Property is vested in the Transferee; (v) the transferring Borrower Grantor executes and delivers to LenderBeneficiary, without any cost or expense to LenderBeneficiary, a release of LenderBeneficiary, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the other security documents through and including the date of the closing of the TIC Assumption, which agreement shall be in form and substance satisfactory to Lender Beneficiary and shall be binding upon the Transferee; (vi) subject to the provisions of PARAGRAPH Paragraph 11 of the Note, such TIC Assumption is not construed so as to relieve the transferring Borrower Grantor of any personal liability under the Note or any of the Loan Documents for any act or events occurring or obligations arising prior to or simultaneously with the closing of such TIC Assumption (excluding payment of the principal amount of the Note and interest accrued thereon) and the transferring Borrower Grantor executes, without any cost or expense to LenderBeneficiary, such documents and agreements as Lender Beneficiary shall reasonably require to evidence and effectuate the ratification of such personal liability; (vii) Transferee shall furnish, if Transferee is a corporation, partnership or other entity, all appropriate papers evidencing Transferee's ’s capacity in good standing and the qualification of the signers to execute the assumption of the Obligations, which paper shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners, members or shareholders of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be) as Lender Beneficiary shall require, shall be single purpose entities, whose formation documents shall be approved by counsel to LenderBeneficiary. Transferee must comply with the provisions of PARAGRAPH Paragraph 17 hereof; (viii) Transferee shall furnish an opinion of counsel satisfactory to Lender Beneficiary and its counsel stating that (A) Transferee's ’s formation documents provide proof for the matters described in SUBPARAGRAPH subparagraph (VIIvii) above, (B) the assets of Transferee will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Transferee, in the event of a bankruptcy or insolvency of any such entity if required by any rating agency after the securitization of the Loan, (C) the assumption of the Obligations has been duly authorized, executed and delivered and the Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (D) Transferee and any entity which is a controlling stockholder, general partner or managing member of Transferee have been duly organized and are in good standing and in existence, (E) the waiver of the right to partition the Property is enforceable against Transferee, and (F) with respect to such other matters as Lender Beneficiary or any applicable rating agency may request; (ix) if the Loan has previously been securitized pursuant to PARAGRAPH Paragraph 43, Lender Beneficiary shall have received evidence in writing from the rating agencies to the effect the proposed transfer will not result in a downgrade, qualification, reduction or withdrawal of any rating initially assigned or to be assigned to any securities issued in connection with the Loan; and (x) Notwithstanding the foregoing or any of the provisions of the Loan Documents to the contrary, a Transferee must meet all of the following conditions: (A) the owner(s) of all of the ownership interests in a Transferee must be an " “ Accredited Investor" ” as defined in Rule 501 of Regulation D of the Securities Act of 1933, and Transferee and/or its principals must have a Beacon/FICO score of not less than 650; (B) neither a Transferee nor the owner(s) of any of the ownership interests in a Transferee shall have (1) been a party to any bankruptcy proceedings, voluntary or involuntary, (2) made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors, (3) defaulted on any indebtedness, (4) owned any property which was subject to foreclosure or attachment proceedings,, (5) been a target of, or party to, any criminal investigation or proceeding, (6) been a party to any threatened or pending litigation or (7) any outstanding judgments; (C) intentionally deleted; (D) there shall be no material convictions, judgments, litigation or regulatory action pending or threatened against Transferee, Transferee’s principals or related entities which is not reasonably acceptable to Beneficiary, and none of Transferee, Transferee’s principals or such related entities shall be on any so-called prohibited persons lists; (E) other than with respect to transfers by the initial Grantor hereunder, the transfer (1) must be for the entire interest of a Tenant in Common in the Property (or 100% of the ownership interests in a Tenant in Common), and (2) can only be made to a single new Tenant in Common. In no event may any such transfer result in “Grantor” being comprised of more than the number of co-owners set forth in Revenue Procedure 2002-22, I.R.B. 2002-14, as such pronouncement may be modified from time to time (which number is thirty five [35] as of the date hereof); (F) Transferee, Transferee’s principals and the related entities shall not have defaulted under its or their obligations with respect to any other indebtedness in a manner which is not acceptable to Beneficiary; and (G) Transferee, Transferee’s principals and the related entities must have demonstrated expertise in owning and operating real estate investment property, which expertise shall be reasonably determined by Beneficiary. Any such TIC Assumption shall not be construed as to relieve any current Guarantors of their obligations under any guarantees or indemnity agreements executed in connection with the Note, provided that if Transferee or a party associated with Transferee approved by Beneficiary in its sole discretion assumes the obligations of the current Guarantors under their guarantees or indemnity agreements and Transferee or such party associated with Transferee if applicable, executes, without any cost or expense to Beneficiary, a new guarantee and/or indemnity agreement in form and substance satisfactory to Beneficiary, then Beneficiary shall release the current Guarantors from all obligations first arising under their guarantees or indemnity agreements after the closing of such TIC Assumption;