Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on the creditworthiness and experience of Mortgagor in owning and operating properties such as the Mortgaged Property in agreeing to make the Loan, and that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property. Mortgagor shall not, without the prior written consent of Mortgagee, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or permit the Mortgaged Property or any part thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred. (b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Paragraph 10 shall be deemed to include (i) an installment sales agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgagor leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Mortgagor's right, title and interest in and to any Leases or any Rents; (iii) if Mortgagor, Guarantor or any general partner or managing member of Mortgagor or Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (iv) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or members. (c) Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Mortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property without Mortgagee's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property. (d) Mortgagee's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention of this paragraph shall be null and void and of no force and effect. (e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer. (f) Mortgagee's consent to the sale or transfer of the Mortgaged Property will not be unreasonably withheld after consideration of all relevant factors, provided that: (i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured; (ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee; (iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Property, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager); (iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (Cedar Income Fund LTD /Md/)
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on the creditworthiness of Mortgagor and experience of Mortgagor in developing, constructing, renovating, owning and operating properties such as the Mortgaged Property in agreeing to make the LoanLoan secured hereby, and that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property. Except as otherwise expressly provided in the Credit Agreement, Mortgagor shall not, without the prior written consent of Mortgagee, sell, convey, alienatealien, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or permit the Mortgaged Property or any part thereof to be sold, conveyed, alienatedaliened, mortgaged, encumbered, pledged or otherwise transferredtransferred (any of the foregoing, a "Transfer"). A Transfer shall -------- not be deemed to include any utility easements or reciprocal operating agreements with adjoining property owners for the benefit of the Mortgaged Property.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Paragraph 10 shall be deemed to include (i) an installment sales agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgagor leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Mortgagor's right, title and interest in and to any Leases or any Rents; (iii) if Mortgagor, Guarantor or any general partner or managing member of Mortgagor or Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (iv) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or members.
(c) Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Mortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Mortgaged Property without Mortgagee's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge consent or transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention of this paragraph shall be null and void and of no force and effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Mortgagee's consent to the sale or transfer provisions of the Mortgaged Property will not be unreasonably withheld after consideration of all relevant factors, provided that:
(i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Property, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;Agreement.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Assignment of Leases and Rents (Afc Enterprises Inc)
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor Borrower acknowledges that Mortgagee Lender has examined and relied on the creditworthiness and experience of Mortgagor Borrower and its general partners, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Mortgaged Property in agreeing to make the Loan, and that Mortgagee Lender will continue to rely on MortgagorBorrower's ownership of the Mortgaged Property and Guarantor's indirect ownership of Borrower as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor Borrower acknowledges that Mortgagee Lender has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor Borrower default in the repayment of the Debt, Mortgagee Lender can recover the Debt by a sale of the Mortgaged Property. Mortgagor Borrower shall not, and shall cause Guarantor not to, without the prior written consent of MortgageeLender, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or permit the Mortgaged Property or any part thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred, other than Leases and easement agreements executed in accordance with the Loan Documents.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Paragraph 10 Section shall be deemed to include include: (i) an installment sales agreement wherein Mortgagor Borrower agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgagor Borrower leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, MortgagorBorrower's right, title and interest in and to any Leases or any Rents; (iii) subject to the provisions in the last sentence of this subsection, if MortgagorBorrower, Guarantor any Guarantor, or any general partner or managing member manager of Mortgagor Borrower or any Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% forty-nine (49%) percent of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporationstockholders; and (iv) if MortgagorBorrower, any Guarantor or any general partner of Mortgagor Borrower or any Guarantor is a limited or general partnership, partnership or joint venture or a limited liability company, the change, removal, removal or resignation or addition of a general partner, managing partnerpartner or joint venturer, joint venturer manager, managing member or a director (unless a manager or majority of the directors continue to be directors or officers of Guarantor), or the transfer, assignment or pledge transfer of any ownership the partnership interest of any general partner, managing partner or joint venturer or, in Mortgagor or the transfer, assignment or pledge case of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary transfer of the limited liability company interests by a manager or involuntary salemanaging member; provided, conveyancehowever, transfer that the direct or pledge indirect holders of any equity interests (whether limited liability company interests, limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an stock or otherwise) in Borrower as of the date hereof may transfer in the aggregate of more than 30up to 49% of such limited partnership equity interests so long as such direct or indirect holders at all times during the term of the Loan maintain, directly or indirectly, controlling and voting ownership of no less than 51% of the equity interests in Borrower and, provided, further, that (A) any transferee of equity interests or membership interests are held byas a general partner, managing member or pledged todirector is a reputable entity or person, parties who are creditworthy, with sufficient financial worth considering any obligations assumed and undertaken with respect to the Loan, as evidenced by financial statements and other information reasonably requested by Lender; (B) the properties comprising the Mortgaged Property at all times shall continue to be managed by reputable property managers, experienced in the management of properties similar to those comprising the Mortgaged Property, and reasonably acceptable to Lender; and (C) if reasonably requested by Lender or, after issuance of Securities with respect to all or a portion of the Loan, as may be required by one or more national rating agencies, with respect to the transfer of 20% or more of the direct or indirect equity interests in Borrower, Lender shall have received customary legal substantive non-consolidation opinions, and such other opinions as customarily required in circumstances where an entity is a single member limited liability company, reasonably acceptable to Lender regarding the entities comprising Borrower and any entity owning a beneficial interest in an entity comprising Borrower. In addition to the foregoing, Impac Hotels II, L.L.C. and Impac Hotels III, L.L.C., the holders, in the aggregate, of 100% of the equity interests in and to Borrower, may transfer all, but not currently a portion, of such equity interests to Impac Hotel Group, L.L.C., a Delaware limited partners liability company, provided, that: (w) Impac Hotel Group, L.L.C. is, and remains through the term of the Loan, wholly owned by Lodgian, Inc., (x) Borrower notifies Lender not less than 30 days in advance of such transfer and, upon the actual transfer, simultaneous notice thereof, (y) Borrower provides Lender with financial statements and organizational documents of Impac Hotel Group, L.L.C. certified by such entity and such other documents as Lender may reasonably request, (z) the transferor and transferee otherwise comply with clauses (B)-(C) of this Section 13(b) if reasonably requested by Lender. Notwithstanding anything to the contrary provided herein, transfers of publicly traded equity in Lodgian, Inc. shall be permitted provided that, until such time as (1) the original principal amount of the Loan has been reduced by $20,000,000.00 and (2) the Debt Service Coverage Ratio equals at least 1.20 for three consecutive calendar months, such transfers shall not individually or membersin the aggregate result in a transfer of a Controlling Interest of or in Lodgian, Inc. to any person or entity.
(c) Mortgagee Except as set forth herein, no sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property, or of any interest therein, shall be permitted during the term of the Loan without Lender's prior written approval. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon MortgagorBorrower's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property without MortgageeLender's consentconsent if required hereunder. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee Lender has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property.
(d) MortgageeLender's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of MortgageeLender's right to require such consent to any future occurrence of samein the future. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention of this paragraph Section shall be null and void and of no force and or effect.
(e) Mortgagor Borrower agrees to bear and shall pay or reimburse Mortgagee Lender on demand for all reasonable expenses (including, without limitation, Lender's reasonable attorneys' out-of-pocket expenses, reasonable attorney's fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee Lender in connection with the review, approval or disapproval, and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Mortgagee's consent Anything herein to the sale or transfer contrary notwithstanding, transfers and partial releases of the Mortgaged Property will not shall be unreasonably withheld after consideration of all relevant factors, provided that:
(i) no Event of Default or event which permitted in accordance with the giving terms of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Property, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;Section 61 hereof.
Appears in 1 contract
Samples: Loan Agreement (Lodgian Inc)
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on the creditworthiness and experience of Mortgagor and its Controlling (defined below) principals in owning and operating properties such as similar to the Mortgaged Property Premises and Improvements in agreeing to make the Loan, and that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment an Event of the DebtDefault occur, Mortgagee can recover the Debt by a sale of the Mortgaged PropertyProperty in accordance with and subject to the terms of this Mortgage and the other Loan Documents. Accordingly, except for Transfers (as defined below) occurring as a result of this Mortgage or permitted by the terms of this Mortgage below, Mortgagor shall not, covenants and agrees not to effect any Transfer or permit any Transfer to occur without in each instance the prior written consent of Mortgagee, sellwhich consent may be withheld in Mortgagee's sole discretion. Any Transfer not permitted by this Mortgage made without the prior written consent of Mortgagee shall constitute an Event of Default and Mortgagee shall have the option to exercise any and all remedies on account of the same, conveyincluding accelerating the Maturity Date and declaring the entire outstanding Debt immediately due and payable, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property and Mortgagee shall not be required to demonstrate any actual impairment of its security or any part thereofincreased risk of default hereunder in order to declare the Debt immediately due and payable. This Subparagraph shall apply to every Transfer whether voluntary or not, or permit the Mortgaged Property whether or not Mortgagee has consented to any part thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferredprevious Transfer.
(b) A The teini "Transfer" means (i) any voluntary or involuntary (excluding a Taking), sale, conveyance, assignment, alienation, disposition, mortgage, encumbrance, pledge or other transfer within of all or any part of the meaning Mortgaged Property (including any conditional sale or other title retention agreement, any sale-leaseback, any financing lease or similar transaction having substantially the same economic effect as any of this Paragraph 10 shall be deemed the foregoing, the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law of any other jurisdiction, domestic or foreign, and any option to include purchase, right of first refusal, right of first offer or similar right, but excluding any such transaction occurring simultaneously with a permitted repayment of the Loan), (iii) any direct, indirect, voluntary or involuntary, sale, conveyance, assignment, alienation, disposition, or other transfer of all or any portion of the equity interests in (or, through constituent parties, any of the ultimate equity interests in) Mortgagor, including any transfer of equity interests resulting from the death of a natural person or by operation of law; (iii) any mortgage, deed of trust, lien, pledge, hypothecation, assignment, preference, priority, security interest, or any other encumbrance or charge on any direct or indirect equity interest in, or right to distributions from Mortgagor (including any similar transaction having substantially the same economic effect as any of the foregoing, the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law of any other jurisdiction, domestic or foreign, and any option to purchase, right of first refusal, right of first offer or similar right, but excluding any such transaction occurring simultaneously with a permitted repayment of the Loan), or (iv) subject to Subparagraph (g) below, the issuance of preferred equity (or debt granting the holder thereof rights substantially similar to those generally associated with preferred equity) by Mortgagor or any holder of a direct or indirect interest in Mortgagor. A Transfer includes, without limitation, (A) an installment sales agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (iiB) an agreement by Mortgagor leasing all or a substantial part of the Mortgaged Property Premises or Improvements for other than actual occupancy possession by a space tenant thereunder or pursuant to a Lease in accordance with the terms of the applicable Loan Documents; and (C) a sale, assignment assignment, pledge, encumbrance or other transfer of, or the grant of a security interest in, Mortgagor's right, title and interest in and to any Leases or any Rents; (iii) if Mortgagor, Guarantor or any general partner or managing member of . Agreements between Mortgagor or Guarantor is a corporation, and tenants that constitute Leases under this Mortgage are governed by the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (iv) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or members.
(c) Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due Assignment and payable upon Mortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property without Mortgagee's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention Paragraph 7 of this paragraph shall be null Mortgage and void and of no force and effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred not by Mortgagee in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Mortgagee's consent to the sale or transfer of the Mortgaged Property will not be unreasonably withheld after consideration of all relevant factors, provided that:
(i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Propertythis Paragraph 8, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will Leases do not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;constitute Transfers.
Appears in 1 contract
Samples: Mortgage (American Realty Capital Healthcare Trust Inc)
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on the creditworthiness of Mortgagor and experience of Mortgagor in owning and operating properties such as the Mortgaged Property in agreeing to make the LoanLoan secured hereby, and that Mortgagee will continue to rely on MortgagorXxxxxxxxx's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property. Mortgagor shall not, without the prior written consent of Mortgagee, sell, convey, alienatealien, lease, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or permit the Mortgaged Property or any part thereof to be sold, conveyed, alienatedaliened, leased, mortgaged, encumbered, pledged or otherwise transferred.transferred (any of the foregoing, a "Transfer"). --------
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Mortgaged Property within the meaning of this Paragraph 10 paragraph 9 shall be deemed to include include:
(i) an installment sales agreement wherein Mortgagor Xxxxxxxxx agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; ;
(ii) an agreement by Mortgagor leasing selling, leasing, assigning or otherwise transferring all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder Property, or a sale, assignment or other transfer of, or the grant of a security interest in, MortgagorXxxxxxxxx's right, title and interest in and to any Leases or any Rents; and
(iii) if Mortgagor, Guarantor or any general partner or managing member of Mortgagor or Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer Transfer of such corporationa Control Individual's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwisehereinafter defined) Controlling Interests (hereinafter defined) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (iv) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer event whereby a Control Individual's Controlling Interests are diluted or pledge of any limited partnership interests his or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or membersher Control over Mortgagor is otherwise diminished.
(c) Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon MortgagorXxxxxxxxx's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Mortgaged Property without Mortgagee's consent. This ; this provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention For purposes of this paragraph 9, the following terms shall be null have the following meanings: "Control" when used with respect to Mortgagor means the power to direct the respective management and void policies of Mortgagor, directly or indirectly, whether through the ownership of voting securities, membership interests, partnership interests or any other beneficial interest, by contract or otherwise, whether acting alone or with others, but an individual does not have "Control" if he or she has only the right to take those actions that a limited partner may take without participating in the business of a limited partnership, as set forth in Article ______ of the Uniform Limited Partnership Law of the State of __________, the terms "Controlling" and "Controlled" shall have the meanings correlative to the foregoing; "Control Individual" shall mean any one of no force and effect.
______________ or ________________; "Controlling Interests" shall mean those beneficial interests or contract rights in or with respect to the Mortgagor (eor any entity that has a direct or indirect beneficial interest in Mortgagor) that give a Control Individual his or her Control over Mortgagor; "Non-controlling Interests" shall mean any beneficial interests in Mortgagor agrees to bear (or any entity that has a direct or indirect beneficial interest in the Mortgagor) that are not Controlling Interests and shall pay or reimburse Mortgagee on demand for all reasonable expenses (includinginclude, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transferlimited partnership interests.
(f) Mortgagee's consent to the sale or transfer of the Mortgaged Property will not be unreasonably withheld after consideration of all relevant factors, provided that:
(i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Property, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;
Appears in 1 contract
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on the creditworthiness and experience of Mortgagor in owning and operating properties such as the Mortgaged Property in agreeing to make the Loanloan secured hereby, and that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property. Except for liens and security interests granted by Mortgagor to Mortgagee in connection with the First Note and the Debt, Mortgagor shall not, without the prior written consent of Mortgagee, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or permit the Mortgaged Property or any part thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred; provided, however, Mortgagee may, in its sole discretion, give such written consent (but shall have no obligation to do so) to any such sale, conveyance, alienation, mortgage, encumbrance, pledge or other transfer, and any such consent may be conditioned upon the satisfaction of such conditions precedent as Mortgagee may require (including, without limitation, the conditions precedent set forth in subsection 12[c] below). Notwithstanding any other provision of this Section 12, Mortgagee will consent, subject to the conditions of subsection 12(c) and provided that no Event of Default has occurred and is continuing, to one sale, conveyance, alienation, mortgage, encumbrance, pledge or other transfer of the Mortgaged Property by the original Mortgagor as set forth in this Mortgage.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Paragraph 10 Section 12 shall not include (x) transfers made by devise or descent or by operation of law upon the death of a joint tenant, partner or shareholder, subject, however, to all the following requirements: (1) written notice of any transfer under this subsection 12(b)(x), whether by will, trust or other written instrument, operation of law or otherwise, is provided to Mortgagee or its servicer, together with copies of such documents relating to the transfer as Mortgagee or its servicer may reasonably request, (2) control over the management and operation of the Mortgaged Property is retained by Janus American Group, Inc., a Delaware corporation (the AOriginal Principals@, whether one or more) at all times prior to the death or legal incapacity of all the Original Principals and is thereafter assumed by persons who are acceptable in all respects to Mortgagee in its sole and absolute discretion, (3) no such transfer by any of the Original Principals will release the respective estate from any liability as a Guarantor, as more particularly provided in subsection 12(c) below, and (4) no such transfer, death or other event has any adverse effect either on the bankruptcy-remote status of Mortgagor under the requirements of any national rating agency for the Certificates (hereinafter defined) or on the status of Mortgagor as a continuing legal entity liable for the payment of the Debt and the performance of all other obligations secured hereby, or (y) transfers otherwise by operation of law in the event of a bankruptcy, nor shall the meaning include a Lease, but shall be deemed to include (i) an installment sales agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgagor leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Mortgagor's right, title and interest in and to any Leases or any Rents; (iii) if Mortgagor, Guarantor Guarantor, or any general partner or managing member of Mortgagor or Guarantor is a corporation, any merger, consolidation or the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders (provided, however, in no event shall this subpart [iii] apply to any Guarantor whose stock, shares or any change in the control of such corporationpartnership interests are traded on a nationally recognized stock exchange); (iv) if Mortgagor, Guarantor, or any general partner of Mortgagor or Guarantor is a limited liability company or limited partnership, the voluntary or involuntary sale, conveyance or transfer by which an aggregate of more than fifty percent (50%) of the ownership interest in such limited liability company or more than fifty percent (50%) of the limited partnership interests in such limited partnership shall be vested in parties not having an ownership interest as of the date of this Mortgage; and (v) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, partnership or joint venture or limited liability companyventure, the change, removal, removal or resignation or addition of a general partner, managing partner, partner or joint venturer or the transfer, assignment transfer of all or pledge any portion of any ownership the partnership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or members.
(c) Notwithstanding the provisions of subsections 9(a) and (b) above, Mortgagee shall not be required will give its consent to demonstrate any actual impairment of its security or any increased risk of default hereunder in order transfer consented to declare by the Debt immediately due and payable upon Mortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer holder of the Mortgaged Property without Mortgagee's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged PropertyFirst Mortgage.
(d) Mortgagee's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention of this paragraph shall be null and void and of no force and effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand for all reasonable expenses (including, without limitation, all recording costs, taxes, reasonable attorneys' attorney's fees and disbursements, disbursements and title search costs and title insurance endorsement premiumscosts) incurred by Mortgagee in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Mortgagee's consent to the sale or transfer of the Mortgaged Property will not be unreasonably withheld after consideration of all relevant factors, provided that:
(i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Property, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;
Appears in 1 contract
Samples: Second Mortgage and Security Agreement (Janus American Group Inc)
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on Except as may otherwise be permitted hereunder or pursuant to the creditworthiness and experience of Mortgagor in owning and operating properties such as the Mortgaged Property in agreeing to make the LoanRelevant Documents, and that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property. Mortgagor shall not, without the prior written consent of Mortgagee, not sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or permit the Mortgaged Property thereof or any part thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Paragraph 10 shall be deemed to include (i) an installment sales agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgagor leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security its interest in, Mortgagor's right, title and interest in and to any Leases or any Rents; (iii) if Mortgagor, Guarantor or any general partner or managing member of Mortgagor or Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (iv) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or members.
(c) therein. Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt Obligations immediately due and payable upon Mortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property without Mortgagee's consentin violation of this Mortgage or any other Relevant Document. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property that is not permitted pursuant to the Relevant Documents, regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property.
(db) Mortgagee's Notwithstanding Section 6(a), Mortgagor shall have the right to sell the Mortgaged Property at any time to a third party bona fide purchaser after consultation with Mortgagee and upon the prior written consent of Mortgagee to one salesuch sale and the sales price (such consent not to be unreasonably withheld), conveyance, alienation, mortgage, encumbrance, pledge or transfer provided that the net proceeds of such sale of the Mortgaged Property (after payment of transfer taxes and reasonable brokerage commissions, if any, and other reasonable closing costs) shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer applied towards repayment of the Mortgaged Property made in contravention of this paragraph shall be null and void and of no force and effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand for all reasonable expenses (Obligations, including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee in connection with repayment of the review, approval and documentation Secured Rejection Note (including prepayment of any such saleamounts not yet due and payable) and payment of the Principal Amounts (as defined in the Rent Deferral Notes) then outstanding under the Rent Deferral Notes, conveyancein the order and manner set forth in the Notes. After the Secured Rejection Note and all Principal Amounts outstanding under the Notes have been repaid in full, alienation, mortgage, encumbrance, pledge or transfer.
any remaining net proceeds (f) Mortgagee's consent to the including proceeds from any sale or transfer other disposition of the Mortgaged Property will pursuant to Section 24 hereof) not applied towards repayment of the Obligations shall be unreasonably withheld after consideration deposited into an escrow account designated by Mortgagee for Mortgagor's account and as security for the performance by Mortgagor of all relevant factors, provided that:
its Obligations to Mortgagee under the Relevant Documents (i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("TransfereeProceeds Escrow Account") which escrow account shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested administered by Mortgagee;
, or, at Mortgagee's discretion and in accordance with Mortgagee's instructions, may be administered by an escrow agent (iiian "Escrow Agent") selected by Mortgagee (whose reasonable fees shall be paid by Mortgagor). Mortgagor may also from time to time deposit additional funds into the Transferee Proceeds Escrow Account as further security for the Obligations. At Mortgagee's request, Mortgagor agrees to enter into a separate escrow agreement to further evidence the provisions of this Section 6(b), and its property manager shall have sufficient experience in the ownership event that Mortgagee chooses an Escrow Agent to administer the Proceeds Escrow Account, Mortgagor agrees to execute an escrow agreement in form and management of properties similar substance reasonably satisfactory to the Mortgaged Property, and Mortgagee shall be provided (including provisions consistent with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;the
Appears in 1 contract
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on the creditworthiness and experience of Mortgagor in owning and operating properties such as the Mortgaged Property in agreeing to make the Loan, and that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property. Mortgagor shall not, without the prior written consent of Mortgagee, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer Transfer (as defined below) the Mortgaged Property or any part thereof, or permit the Mortgaged Property or any part thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred.
(b) A "Transfer" within the meaning of this Paragraph 12, shall mean any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within of the meaning Mortgaged Property or any interest therein, or any change in the control of this Paragraph 10 Mortgagor or any Person who controls Mortgagor, and shall be deemed to include include: (i) an installment sales agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgagor leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Mortgagor's right, title and interest in and to any Leases or any Rents; (iii) if Mortgagor, Guarantor any Guarantor, or any managing partner, general partner or managing member manager of Mortgagor or Guarantor is a corporation, partnership, limited partnership, joint venture or limited liability company (an "Entity"), the voluntary or involuntary sale, conveyance or transfer of such corporationEntity's stock stock, general or limited partnership interests, membership interests or other indicia of ownership (the "Interests") (or the stock Interests of any corporation entity directly or indirectly controlling such corporation Entity by operation of law or otherwise) or the creation or issuance of new stock Interests, in one or a series of transactions by which an aggregate of more than 10% of such corporationEntity's stock Interests shall be vested in a party or parties who are not now stockholders stockholders, partners, general partners, limited partners, joint venturers or any members, or a change in the control of such corporationEntity; and (iv) if Mortgagor, any Guarantor or any general partner partner, managing partner, manager or joint venturer of Mortgagor or any Guarantor is a limited or general partnership, partnership or joint venture or limited liability companyventure, the change, removal, resignation or addition of a general partner, managing partner, manager or joint venturer or the transfer, assignment or pledge transfer of any ownership interest the Interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner manager or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company. As used herein, the voluntary term "control" means the possession, directly or involuntary saleindirectly, conveyanceof the power to direct or cause the direction of the management and policies of a person or entity, transfer or pledge whether through ownership of any limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interestsvoting securities, by which an aggregate of more than 30% of such limited partnership interests contract or membership interests are held by, or pledged to, parties who are not currently limited partners or membersotherwise.
(c) Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Mortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property without Mortgagee's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention of this paragraph shall be null and void and of no force and effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Mortgagee's consent to the sale or transfer of the Mortgaged Property will not be unreasonably withheld after consideration of all relevant factors, provided that:
(i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Property, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (Ridgewood Properties Inc)
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor Grantor acknowledges that Mortgagee (i) Secured Party has examined and relied on the creditworthiness and experience of Mortgagor the principals of Grantor in owning and operating properties such as the Mortgaged Property in agreeing to make the Loan, and that Mortgagee (ii) Secured Party will continue to rely on Mortgagor's Grantor’s ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee , and (iii) Secured Party has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor Grantor default in the repayment of the Debt, Mortgagee Secured Party can recover the Debt by a sale of the Mortgaged Property. Mortgagor Grantor shall not, without the prior written consent of Mortgageedirectly or indirectly, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or any interest therein, or suffer or permit any Asset Sale or Change in Control to occur (any of the Mortgaged Property or any part thereof to be soldforegoing, conveyeda “Transfer”), alienated, mortgaged, encumbered, pledged or otherwise transferredother than as expressly permitted under the Loan Agreement.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Paragraph 10 shall be deemed to include (i) an installment sales agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgagor leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Mortgagor's right, title and interest in and to any Leases or any Rents; (iii) if Mortgagor, Guarantor or any general partner or managing member of Mortgagor or Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (iv) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or members.
(c) Mortgagee Secured Party shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Mortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer in violation of the Mortgaged Property without Mortgagee's consentthis Section 4. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property (and every other Asset Sale or Change in Control) regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge Asset Sale or transfer of the Mortgaged Property Change in Control made in contravention of this paragraph Section 4 shall be null and void and of no force and effect.
(e) Mortgagor . Grantor agrees to bear and shall pay or reimburse Mortgagee Secured Party on demand for all reasonable out-of-pocket expenses (including, without limitation, including reasonable attorneys' ’ fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee Secured Party in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transferproposed Transfer.
(f) Mortgagee's consent to the sale or transfer of the Mortgaged Property will not be unreasonably withheld after consideration of all relevant factors, provided that:
(i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Property, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;
Appears in 1 contract
Samples: Term Loan Agreement (GPAQ Acquisition Holdings, Inc.)
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on Except as may otherwise be permitted hereunder or pursuant to the creditworthiness and experience of Mortgagor in owning and operating properties such as the Mortgaged Property in agreeing to make the LoanRelevant Documents, and that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property. Mortgagor shall not, without the prior written consent of Mortgagee, not sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or permit the Mortgaged Property thereof or any part thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Paragraph 10 shall be deemed to include (i) an installment sales agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgagor leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security its interest in, Mortgagor's right, title and interest in and to any Leases or any Rents; (iii) if Mortgagor, Guarantor or any general partner or managing member of Mortgagor or Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (iv) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or members.
(c) therein. Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt Obligations immediately due and payable upon MortgagorXxxxxxxxx's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property without Mortgagee's consentin violation of this Mortgage or any other Relevant Document. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property that is not permitted pursuant to the Relevant Documents, regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property.
(db) Mortgagee's Notwithstanding Section 6(a), Mortgagor shall have the right to sell the Mortgaged Property at any time to a third party bona fide purchaser after consultation with Mortgagee and upon the prior written consent of Mortgagee to one salesuch sale and the sales price (such consent not to be unreasonably withheld), conveyance, alienation, mortgage, encumbrance, pledge or transfer provided that the net proceeds of such sale of the Mortgaged Property (after payment of transfer taxes and reasonable brokerage commissions, if any, and other reasonable closing costs) shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer applied towards repayment of the Mortgaged Property made in contravention of this paragraph shall be null and void and of no force and effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand for all reasonable expenses (Obligations, including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee in connection with repayment of the review, approval and documentation Secured Rejection Note (including prepayment of any such saleamounts not yet due and payable) and payment of the Principal Amounts (as defined in the Rent Deferral Notes) then outstanding under the Rent Deferral Notes, conveyancein the order and manner set forth in the Notes. After the Secured Rejection Note and all Principal Amounts outstanding under the Notes have been repaid in full, alienation, mortgage, encumbrance, pledge or transfer.
any remaining net proceeds (f) Mortgagee's consent to the including proceeds from any sale or transfer other disposition of the Mortgaged Property will pursuant to Section 24 hereof) not applied towards repayment of the Obligations shall be unreasonably withheld after consideration deposited into an escrow account designated by Mortgagee for Mortgagor's account and as security for the performance by Mortgagor of all relevant factors, provided that:
its Obligations to Mortgagee under the Relevant Documents (i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("TransfereePROCEEDS ESCROW ACCOUNT") which escrow account shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested administered by Mortgagee;
, or, at Mortgagee's discretion and in accordance with Mortgagee's instructions, may be administered by an escrow agent (iiian "ESCROW AGENT") selected by Mortgagee (whose reasonable fees shall be paid by Xxxxxxxxx). Xxxxxxxxx may also from time to time deposit additional funds into the Transferee Proceeds Escrow Account as further security for the Obligations. At Mortgagee's request, Xxxxxxxxx agrees to enter into a separate escrow agreement to further evidence the provisions of this Section 6(b), and its property manager shall have sufficient experience in the ownership event that Mortgagee chooses an Escrow Agent to administer the Proceeds Escrow Account, Xxxxxxxxx agrees to execute an escrow agreement in form and management of properties similar substance reasonably satisfactory to the Mortgaged Property, and Mortgagee shall be provided (including provisions consistent with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;the
Appears in 1 contract
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on the creditworthiness and experience of Mortgagor in owning and operating properties such as the Mortgaged Property in agreeing to make the Loan, and that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property. Mortgagor shall not, without the prior written consent of Mortgagee, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or permit the Mortgaged Property or any part thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred, provided, however, that the Agency may convey the Mortgaged Property to BMC, subject to this Mortgage and, upon providing Mortgagee with the prior written notice of same, in accordance with the Lease Agreement dated as of July 1, 1996 between BMC and the Agency (the "Agency Lease Agreement") without the Mortgagee's prior written consent.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Paragraph 10 11 shall be deemed to include (iinclude, without limitation,(i) an installment sales agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgagor leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder or Property; and (iii) a sale, assignment or other transfer of, or the grant of a security interest in, Mortgagor's right, title and interest in and to any Leases leases or any Rents; (iii) if Mortgagor, Guarantor or any general partner or managing member of Mortgagor or Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (iv) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or membersrents.
(c) Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt Indebtedness immediately due and payable upon Mortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property without Mortgagee's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention of this paragraph shall be null and void and of no force and effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee may withhold its consent in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transferits sole discretion.
(f) Mortgagee's consent to the sale or transfer of the Mortgaged Property will not be unreasonably withheld after consideration of all relevant factors, provided that:
(i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Property, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents, and Security Agreement (BMC Industries Inc/Mn/)
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on the creditworthiness of Mortgagor and experience of Mortgagor in owning and operating properties such as the Mortgaged Property in agreeing to make the LoanLoan secured hereby, and that Mortgagee will continue to rely on MortgagorXxxxxxxxx's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property. Mortgagor shall not, without the prior written consent of Mortgagee, sell, convey, alienatealien, lease, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or permit the Mortgaged Property or any part thereof to be sold, conveyed, alienatedaliened, leased, mortgaged, encumbered, pledged or otherwise transferred.transferred (any of the foregoing, a "Transfer"). --------
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Mortgaged Property within the meaning of this Paragraph paragraph 10 shall be deemed to include include:
(i) an installment sales agreement wherein Mortgagor Xxxxxxxxx agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; ;
(ii) an agreement by Mortgagor leasing selling, leasing, subleasing, assigning or otherwise transferring all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder Property, or a sale, assignment or other transfer of, or the grant of a security interest in, MortgagorXxxxxxxxx's right, title and interest in and to any Leases Subleases or any Rents; and
(iii) if Mortgagor, Guarantor or any general partner or managing member of Mortgagor or Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer Transfer of such corporationa Control Individual's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwisehereinafter defined) Controlling Interests (hereinafter defined) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (iv) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer event whereby a Control Individual's Controlling Interests are diluted or pledge of any limited partnership interests his or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or membersher Control over Xxxxxxxxx is otherwise diminished.
(c) Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon MortgagorXxxxxxxxx's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Mortgaged Property without Mortgagee's consent. This ; this provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention of this paragraph shall be null and void and of no force and effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Mortgagee's consent to the sale or transfer of the Mortgaged Property will not be unreasonably withheld after consideration of all relevant factors, provided that:
(i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Property, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;
Appears in 1 contract
Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor acknowledges that Mortgagee has examined and relied on the creditworthiness of Mortgagor and experience of Mortgagor in developing, constructing, renovating, owning and operating properties such as the Mortgaged Property in agreeing to make the LoanLoan secured hereby, and that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property. Except as otherwise expressly provided in the Credit Agreement, Mortgagor shall not, without the prior written consent of Mortgagee, sell, convey, alienatealien, mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any part thereof, or permit the Mortgaged Property or any part thereof to be sold, conveyed, alienatedaliened, mortgaged, encumbered, pledged or otherwise transferred.transferred (any of the foregoing, a "Transfer"). --------
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Paragraph 10 shall be deemed to include (i) an installment sales agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgagor leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Mortgagor's right, title and interest in and to any Leases or any Rents; (iii) if Mortgagor, Guarantor or any general partner or managing member of Mortgagor or Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation; (iv) if Mortgagor, any Guarantor or any general partner of Mortgagor or any Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer in Mortgagor or the transfer, assignment or pledge of any ownership interest in any general partner, managing partner or joint venturer; or (v) if Mortgagor or any Guarantor is a limited partnership or limited liability company, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or membership interests or the creation or issuance of new limited partnership interests or membership interests, by which an aggregate of more than 30% of such limited partnership interests or membership interests are held by, or pledged to, parties who are not currently limited partners or members.
(c) Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Mortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Mortgaged Property without Mortgagee's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge consent or transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to be a waiver of Mortgagee's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention of this paragraph shall be null and void and of no force and effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Mortgagee in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Mortgagee's consent to the sale or transfer provisions of the Mortgaged Property will not be unreasonably withheld after consideration of all relevant factors, provided that:
(i) no Event of Default or event which with the giving of notice or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a reputable entity or person of good character, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have sufficient experience in the ownership and management of properties similar to the Mortgaged Property, and Mortgagee shall be provided with reasonable evidence thereof (and Mortgagee reserves the right to approve the Transferee without approving the substitution of the property manager);
(iv) Mortgagee shall have recommendations in writing from the Rating Agencies to the effect that such transfer will not result in a requalification, reduction or withdrawal of any current securities rating assigned in a Securitization. The term "Rating Agencies" as used herein shall mean each of Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff and Xxxxxx Credit Rating Co. and Fitch Investors Service, L.P., or any other nationally-recognized statistical rating agency which has been approved by Mortgagee;Agreement.
Appears in 1 contract
