Transfer or Encumbrance of the Property. (a) Trustor acknowledges that Beneficiary has examined and relied on the creditworthiness and experience of Trustor in owning and operating the Property in agreeing to make the Loan, and that Beneficiary will continue to rely on Trustor's ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Indebtedness. Trustor acknowledges that Beneficiary has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor default in the repayment of the Indebtedness, Beneficiary can recover the Indebtedness by a sale of the Property. Trustor shall not, without the prior written consent of Beneficiary, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Property or any part thereof, or permit the 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 Section 5.3 shall be deemed to include (i) ----------- an installment sales agreement wherein Trustor agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor leasing all or a substantial part of the 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, Trustor's right, title and interest in and to any Leases or any Payments; (iii) if Trustor or any general partner or managing member of Trustor 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 50% 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 Trustor or any general partner of Trustor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, or joint venturer or the transfer of any ownership interest of any general partner, managing partner or joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (v) if Trustor is a limited partnership, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or the creation or issuance of new limited partnership interests, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interests. Notwithstanding anything herein to the contrary, the following transfers of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from the death of an individual, including without limitation, pursuant to a will, trust or intestate proceeding. (c) Beneficiary shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Indebtedness immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property without Beneficiary's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property. (d) Beneficiary's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Beneficiary's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in contravention of this Section shall be null and void and of no force and effect. (e) Trustor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer. (f) Beneficiary's consent to the sale or transfer of the 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 Beneficiary; (iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof; (iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and (v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs).
Appears in 4 contracts
Samples: Deed of Trust, Security Agreement, and Fixture Filing With Assignment of Rents and Agreements (G&l Realty Corp), Deed of Trust (G&l Realty Corp), Deed of Trust (G&l Realty Corp)
Transfer or Encumbrance of the Property. (a) Trustor Grantor acknowledges that Beneficiary has examined and relied on the creditworthiness and experience of Trustor Grantor and its general partner, managing member, limited partners, members and beneficial owners, as applicable, in owning and operating properties such as the Property in agreeing to make the Loanloan secured by this Deed of Trust, and that Beneficiary will continue to rely on Trustor's Grantor’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Grantor acknowledges that Beneficiary has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Grantor default in the repayment of the IndebtednessDebt, Beneficiary can recover the Indebtedness Debt by a sale of the Property. Trustor Grantor shall not, without the prior written consent of Beneficiary, directly or indirectly, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Property all or any part thereofof the Property, or permit the Property all or any part thereof of the Property 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 Section 5.3 shall be deemed to include include: (i) ----------- an installment sales agreement wherein Trustor Grantor agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor Grantor leasing all or a substantial part of the 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, Trustor's Grantor’s right, title and interest in and to any Leases or any PaymentsProfits; (iii) if Trustor Grantor, Guarantor, or any general partner or managing member of Trustor Grantor is a corporation, the merger, consolidation or voluntary or involuntary sale, exchange, conveyance or transfer of such corporation's ’s stock (or the stock of any corporation directly or indirectly (at any tier) controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock stock, in one or a series of transactions by transactions, in any such case the result of which is that an aggregate of more than 50% forty-nine percent (49%) of such corporation's ’s stock (or such controlling corporation’s stock) shall be vested vested, legally or beneficially, in a party or parties who are not now stockholders or any change in the control of such corporationstockholders; (iv) if Trustor Grantor, Guarantor or any general partner or managing member (or if no managing member, any member) of Trustor Grantor is a limited or general partnership, joint venture (A) any merger or limited liability companyconsolidation of such entity or of any entity directly or indirectly (at any tier) controlling such entity, (B) the change, removal, removal or resignation or addition of a general partner or managing partner, the admission of a new general partner or managing partner, or joint venturer the direct or indirect (at any tier) transfer or pledge of the transfer of any ownership interest legal or beneficial rights to the partnership interests of any general partner, partner or managing partner or joint venturer any profits or the transferproceeds related thereto, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (vC) if Trustor is a limited partnership, the voluntary or involuntary merger, consolidation, sale, conveyanceexchange, conveyance or direct or indirect (at any tier) transfer of legal or pledge of any limited beneficial rights to the profits or other partnership interests in such partnership or joint venture, or the creation or issuance of new limited partnership interests, by in one or a series of transactions, in any such case the result of which is that an aggregate of more than 50% forty-nine percent (49%) of such limited entity’s partnership interests are held by shall be vested, legally or beneficially, in a party or parties who are not currently limited now partners; or (viv) if Trustor Grantor, Guarantor or any general partner or member of Grantor or Guarantor is a limited liability company, (A) any merger or consolidation of such entity or of any entity directly or indirectly (at any tier) controlling such entity, (B) the change, removal or resignation of a managing member or of a non-member manager (or if no managing member or non-member manager, any member), or the direct or indirect (at any tier) transfer of the legal or beneficial ownership of membership interests or “units” of a managing member or of a non-member manager (or if no managing member or non-member manager, any member) or any profits or proceeds relating to such membership interests or “units”, or (C) the voluntary or involuntary sale, exchange, conveyance or direct or indirect (at any tier) transfer of membership interests or “units” in such limited liability company, or the creation or issuance of new membership interests or “units” in one or a series of transactions, in any such case the result of which is that an aggregate of more than 50% forty-nine percent (49%) of such company’s membership interests or “units” shall be vested, legally or beneficially, in a party or parties who are not now members; and (vi) the removal, resignation or substitution of the members' Sole Member in either entity comprising Grantor or the merger, consolidation or voluntary or involuntary sale, exchange, conveyance or direct or indirect (at any tier) transfer of the controlling interest in the stock, partnership interests or membership interests, as applicable, in the Sole Member of each entity comprising Grantor, from parties who are not now currently holders of such ownership interests. Notwithstanding anything contained herein to the contrary, the following transfers foregoing restrictions shall not apply to (A) any merger or consolidation of any entity directly or indirectly (at any tier) controlling Guarantor, (B) the direct or indirect (at any tier) sale, transfer or pledge of the stock in or legal or beneficial rights to the stock in Guarantor or any profits or proceeds related thereto, (C) the voluntary or involuntary merger, consolidation, sale, exchange, conveyance or direct or indirect (at any tier) transfer of legal or beneficial rights to the profits or stock in Guarantor, or the creation or issuance of ownership interests in any Trustor Guarantor, in one or a series of transactions to a party or parties who are not now owners, so long as, Guarantor remains the ultimate owner of each entity comprising Grantor and continues to control the day to day operations of each entity comprising Grantor, or (D) the transfer of existing limited partnership interests in the Sole Member of either entity comprising Grantor, or the creation of new limited partnership interests in such Sole Member of either party comprising Grantor, provided that the current general partner of such Sole Member of either entity comprising Grantor continues to be owned and controlled by Guarantor; provided, in each case, that Grantor shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunderdeliver to Beneficiary the following: (iA) any transfers into or out a certificate from an authorized signatory of Grantor confirming that the conditions in this sentence have been met, (B) complete copies of all transfer, organizational, trust (with confidential terms redacted) and other documentation executed in connection with such transaction, (C) a trustnew organizational structure chart reflecting the equity ownership (names of entities and ownership percentage, family limited partnershipetc.) of Grantor and its members, or other similar entity or device for tax or estate planning purposes; direct and indirect owners, providing the same level of detail as the organizational chart submitted to and acceptable to Beneficiary during the Loan origination process, and (iiD) any transfers resulting from in the death event such transaction results in forty-nine percent (49%) or more of the interest in Grantor in the aggregate being owned by an individualentity which is not an owner, including without limitationdirectly or indirectly, pursuant of Grantor as of the closing of the Loan, a non-consolidation opinion reasonably acceptable to a will, trust or intestate proceedingBeneficiary.
(c) No sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer all or any part of the Property, shall be permitted during the term of the Loan without Beneficiary’s prior written approval. Beneficiary shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Indebtedness Debt immediately due and payable upon Trustor's Grantor’s sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property without Beneficiary's ’s written consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property.
(d) Beneficiary's ’s consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in accordance with Section 14 of the Note shall not be deemed to be a waiver of Beneficiary's ’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 Property made in contravention of this Section shall be null and void and of no force and or effect.
(e) Trustor Grantor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable Beneficiary’s out-of-pocket attorneys' ’ fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary in connection with the review, approval or disapproval, and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's consent to the sale or transfer of the 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 Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs).
Appears in 3 contracts
Samples: Deed of Trust, Leasehold Deed of Trust, Assignment of Leases and Profits, Security Agreement and Fixture Filing (Innkeepers Usa Trust/Fl), Deed of Trust, Leasehold Deed of Trust, Assignment of Leases and Profits, Security Agreement and Fixture Filing (Innkeepers Usa Trust/Fl), Deed of Trust, Leasehold Deed of Trust, Assignment of Leases and Profits, Security Agreement and Fixture Filing (Innkeepers Usa Trust/Fl)
Transfer or Encumbrance of the Property. (a) Trustor Borrower acknowledges that Beneficiary (i) Mortgagee has examined and relied on the creditworthiness and experience of Trustor the principals of Borrower in owning and operating properties such as the Property in agreeing to make the Loan, and that Beneficiary (ii) Mortgagee will continue to rely on Trustor's Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Indebtedness. Trustor acknowledges that Beneficiary Debt, and (iii) Mortgagee has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Borrower default in the repayment of the IndebtednessDebt, Beneficiary Mortgagee can recover the Indebtedness Debt (pursuant to the Loan Agreement) by a sale of the Property. Trustor Borrower shall not, without the prior written consent of Beneficiary, not sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Property or any part thereof, or suffer or permit any Transfer to occur, other than a Permitted Transfer, without the prior written consent of Mortgagee. Notwithstanding anything to the contrary contained herein, this Security Instrument shall not constitute a modification of any other provisions in any other Loan Documents which prohibit, limit or restrict the right of Borrower to transfer the Property or the right of any part thereof party to be soldtransfer any interest, conveyeddirectly or indirectly, alienated, mortgaged, encumbered, pledged or otherwise transferredin Borrower.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Section 5.3 shall be deemed to include (i) ----------- an installment sales agreement wherein Trustor agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor leasing all or a substantial part of the 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, Trustor's right, title and interest in and to any Leases or any Payments; (iii) if Trustor or any general partner or managing member of Trustor 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 50% 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 Trustor or any general partner of Trustor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, or joint venturer or the transfer of any ownership interest of any general partner, managing partner or joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (v) if Trustor is a limited partnership, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or the creation or issuance of new limited partnership interests, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interests. Notwithstanding anything herein to the contrary, the following transfers of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from the death of an individual, including without limitation, pursuant to a will, trust or intestate proceeding.
(c) Beneficiary 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 Indebtedness Debt immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer a Transfer in violation of the Property without Beneficiary's consentthis Paragraph 4. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property (and every other Transfer) in violation of this Paragraph 4 regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property.
(d) Beneficiary's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Beneficiary's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property Transfer made in contravention of this Section Paragraph 4 shall be null and void and of no force and effect.
(e) Trustor . Borrower agrees to bear and shall pay or reimburse Beneficiary Mortgagee on demand for all reasonable out-of-pocket expenses (including, without limitation, including reasonable out of pocket attorneys' ’ fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary Mortgagee in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transferPermitted Transfer.
(f) Beneficiary's consent to the sale or transfer of the 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 Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs).
Appears in 2 contracts
Samples: Senior Loan Consolidated, Amended and Restated Mortgage, Assignment of Leases and Rents and Security Agreement (KBS Strategic Opportunity REIT, Inc.), Building Loan Consolidated, Amended and Restated Mortgage, Assignment of Leases and Rents and Security Agreement (KBS Strategic Opportunity REIT, Inc.)
Transfer or Encumbrance of the Property. (a) Trustor Borrower acknowledges that Beneficiary Lender has examined and relied on the creditworthiness and experience of Trustor Borrower in owning and operating properties such as the Property in agreeing to make the Loanloan secured hereby, and that Beneficiary Lender will continue to rely on Trustor's Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Borrower acknowledges that Beneficiary Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Borrower default in the repayment of the IndebtednessDebt, Beneficiary Lender can recover the Indebtedness Debt by a sale of the Property. Trustor shall notSubject to the provisions of subsection 12(b) below, without the prior written consent of BeneficiaryLender:
(i) neither Borrower nor any other person shall, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, sell, transfer, convey, mortgage, pledge, or assign any interest in, or encumber, alienate, mortgage, encumber, pledge gxxxx x xxxx in or otherwise transfer the Property or any part thereofagainst, or permit grant or enter into any easement, covenant or other agreement granting rights in or restricting the use or development of (A) the Property or any part thereof to be soldor (B) any partnership interest, conveyedmembership interest, alienatedshares of stock, mortgaged, encumbered, pledged or otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Section 5.3 shall be deemed to include (i) ----------- an installment sales agreement wherein Trustor agrees to sell the Property beneficial interest or any part thereof for a price to be paid other ownership interest (in installments; (iiwhole or in part) an agreement by Trustor leasing all in Borrower or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a salein any partner, assignment member, shareholder, beneficiary or other transfer of, direct or the grant of a security interest in, Trustor's right, title and interest in and to any Leases or any Payments; (iii) if Trustor or any general partner or managing member of Trustor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock indirect holder 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 50% 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 corporationinterest therein; (iv) if Trustor or any general partner of Trustor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, or joint venturer or the transfer of any ownership interest of any general partner, managing partner or joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (v) if Trustor is a limited partnership, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or the creation or issuance of new limited partnership interests, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interests. Notwithstanding anything herein to the contrary, the following transfers of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from the death of an individual, including without limitation, pursuant to a will, trust or intestate proceeding.
(c) Beneficiary shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Indebtedness immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property without Beneficiary's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property.
(d) Beneficiary's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Beneficiary's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in contravention of this Section shall be null and void and of no force and effect.
(e) Trustor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's consent to the sale or transfer of the 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;and
(ii) the proposed transferee ("TRANSFEREE") no new partner, member, shareholder, beneficiary or other legal or equitable owner shall be a reputable entity admitted to or person created in Borrower or in any partner, member, shareholder, beneficiary or other direct or indirect holder of good characterany interest therein, creditworthy, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Beneficiary;nor shall any existing general partner or member or controlling limited partner withdraw from Borrower; and
(iii) the Transferee and its property manager (if any) there shall have sufficient experience be permitted no change in the ownership and management organizational documents of, nor any withdrawal, resignation, removal or other change of properties similar status on the part of any partner, member, officer, director, manager or other person from or with respect to his, her or its position of authority or control in, any of Borrower or any partner, member, shareholder, beneficiary or other legal or equitable owner of Borrower, or any partner, member, shareholder, beneficiary or other direct or indirect holder of any interest therein, if any such occurrence shall result in a change in control of the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs)Borrower or Borrower’s affairs.
Appears in 2 contracts
Samples: Deed of Trust and Security Agreement (Infousa Inc), Deed of Trust and Security Agreement (Infousa Inc)
Transfer or Encumbrance of the Property. (a) Trustor Grantor acknowledges that Beneficiary has examined and relied on the creditworthiness and experience of Trustor Grantor and its general partner, limited partners and beneficial owners in owning and operating properties such as the Property in agreeing to make the Loanloan secured by this Deed of Trust, and that Beneficiary will continue to rely on TrustorGrantor's ownership of interest in the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Grantor acknowledges that Beneficiary has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Grantor default in the repayment of the IndebtednessDebt, Beneficiary can recover the Indebtedness Debt by a sale of the Property. Trustor Grantor shall not, without the prior written consent of Beneficiary, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer its interest in the Property or any part thereof, or permit the 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 Section 5.3 shall be deemed to include include: (i) ----------- an a land contract or other form of installment sales agreement wherein Trustor Grantor agrees to sell its interest in the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor Grantor leasing all or a substantial part of the 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, TrustorGrantor's right, title and interest in and to any Leases or any PaymentsRents; (iii) if Trustor Grantor, Guarantor, or any general partner or managing member of Trustor Grantor is a corporation, the voluntary or involuntary sale, exchange, 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 stock, in one or a series of transactions by which an aggregate of more than 50% forty-nine percent (49%) 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; (iv) if Trustor Grantor, Guarantor or any general partner or managing member (or if no managing member, any member) of Trustor Grantor 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 venturer, or the transfer or pledge of any ownership the partnership interest of any general partner, managing partner or joint venturer or any profits or proceeds related thereto or the transfer, assignment pledge, issuance or pledge creation, in one or a series of any ownership interest transactions, of any general partner, managing partner limited partnership interests by which more than forty-nine percent (49%) of such limited partnership interests shall be vested in a party or joint venturerparties who are not now limited partners; and (v) if Trustor Grantor or any general partner or member of Grantor is a limited partnershipliability company, (A) the change, removal or resignation of a managing member (or if no managing member, any member) or the transfer of the membership interests or "units" of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interests or "units", or (B) the voluntary or involuntary sale, conveyanceexchange, conveyance or transfer of membership interests or pledge of any "units" in such limited partnership interests liability company, or the creation or issuance of new limited partnership interests, membership interests or "units" in one or a series of transactions by which an aggregate of more than 50% forty-nine percent (49%) of such limited partnership company's membership interests are held by or "units" shall be vested in a party or parties who are not currently now members; provided, however, that such limitation shall not operate to restrict the free transferability of stock in Equity Inns, Inc., a Tennessee corporation or, subject to subsection (iv) above, issuance of limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interestspartnership units in Guarantor. Notwithstanding anything herein to the contraryforegoing, the following transfers of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereundertransfer for purposes of this Section 13: (ix) any transfers into transfer by devise or out descent or by operation of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from law upon the death of a partner of Grantor or of any Guarantor, or (y) a sale or transfer of a partnership interest in Grantor by a current partner to an individualimmediate family member (i.e., including without limitationparents, pursuant spouses, siblings, children or grandchildren) of such partner or to a will, trust or intestate proceedingfor the benefit of an immediate family member of such partner.
(c) No sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of Grantor’s interest in the Property, shall be permitted during the term of the Loan without Beneficiary's prior written approval. Beneficiary shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Indebtedness Debt immediately due and payable upon TrustorGrantor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of its interest in the Property without Beneficiary's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of its interest in the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of Grantor’s interest in the Property.
(d) Beneficiary's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of Grantor’s interest in the Property shall not be deemed to be a waiver of Beneficiary'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 Property made in contravention of this Section shall be null and void and of no force and or effect.
(e) Trustor Grantor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable Beneficiary's out-of-pocket attorneys' ’ fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary in connection with the review, approval or disapproval, and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's consent to the sale or transfer of the 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 Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs).
Appears in 1 contract
Samples: Deed of Trust (Equity Inns Inc)
Transfer or Encumbrance of the Property. (a) Trustor Borrower acknowledges that Beneficiary Xxxxxx has examined and relied on the creditworthiness of Xxxxxxxx and the experience of Trustor Borrower in owning and operating properties such as the Property in agreeing to make the Loanloan secured hereby, and that Beneficiary Xxxxxx will continue to rely on TrustorXxxxxxxx's ownership of the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Borrower acknowledges that Beneficiary Xxxxxx has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Borrower default in the repayment of the IndebtednessDebt, Beneficiary Xxxxxx can recover the Indebtedness Debt by a sale of the Property. Trustor Except as otherwise provided in subparagraph 9(c) hereof, Borrower shall not, without the prior written consent of Beneficiary, not sell, convey, alienatealien, mortgage, encumber, pledge or otherwise transfer the Property or any part thereof, or permit the Property or any part thereof to be sold, conveyed, alienatedaliened, mortgaged, encumbered, pledged or otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Section 5.3 paragraph 9 shall be deemed to include (i) ----------- an installment sales agreement wherein Trustor Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor Borrower leasing all or a substantial part of the 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, TrustorXxxxxxxx's right, title and interest in and to any Leases or any PaymentsRents; (iii) if Trustor Borrower or any general partner or managing member of Trustor Borrower 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 5049% of such corporation's stock shall be vested in a party or parties who are not now stockholders stockholders, except for any sale, conveyance or any change in the control transfer of such corporation's stock to an Affiliate provided Xxxxxx shall have received prior written notice of such transfer; (iv) if Trustor Borrower or any general partner or managing member of Trustor Borrower is a limited or general partnershippartnership or joint venture, joint venture the change, removal or resignation of a general partner or managing partner or the transfer of the partnership interest of any general partner or managing partner, except for any transfer of such partnership interest to an Affiliate, and excluding the removal or resignation of any non Affiliate or non managing general partner where the managing general partner shall remain following such removal or resignation, provided, in either case, Xxxxxx shall have received prior written notice of such transfer resignation or removal; (v) if Borrower or any Guarantor or any general partner or managing member of Borrower or any Guarantor is a limited liability company, the change, removal, removal or resignation or addition of a general partner, the managing partnermember of such company, or joint venturer the transfer or pledge of the membership interest of the managing member of such company or any profits or proceeds relating to such membership interest or the transfer of more than 49% in the aggregate of any ownership membership interests in such company whether in one transfer or a series of transfers, except for any transfer of membership interests to an Affiliate, provided Xxxxxx shall have received prior written notice of such transfer, resignation or removal; (vi) any transfer of any interest by the Manager (hereinafter defined) other than as permitted under paragraph 53; and (vii) any transfer of the beneficial interest of any general partner, managing partner or joint venturer or the transfer, assignment or pledge of Borrower in any ownership interest of any general partner, managing partner or joint venturer; (v) if Trustor is a limited partnership, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or the creation or issuance of new limited partnership interests, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interests. Notwithstanding anything herein trust holding legal title to the contrary, the following transfers of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from the death of an individual, including without limitation, pursuant to a will, trust or intestate proceedingProperty.
(c) Beneficiary Notwithstanding anything to the contrary contained herein:
(i) Upon sixty (60) days prior written notice to Lender, the Borrower shall not have the limited right to transfer legal title to the Property to a Single Purpose Entity Transferee (hereinafter defined) provided (a) such Single Purpose Entity Transferee assumes all of the obligations of the Borrower under this Security Instrument, the Note and the Other Security Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement with Borrower and Lender in form and substance reasonably satisfactory to Lender (an "Assumption Agreement"), (b) the Single Purpose Entity Transferee shall have been newly formed exclusively and solely for the purpose of owning and operating the Property and shall have been engaged in no other business activities prior to the transfer of title to such Single Purpose Entity Transferee and must be required a "United States person" as defined by Section 7701(a)(30) of the United States Internal Revenue Code of 1986, as amended, (c) the Single Purpose Entity Transferee or the management agent it employs to demonstrate manage the Property shall have Adequate Real Estate Experience (hereinafter defined), (d) the Single Purpose Entity Transferee shall deliver to Lender evidence of the fulfillment of the requirements of subsection (b) above, (e) the Single Purpose Entity Transferee shall deliver any actual impairment and all organizational documentation requested by Lender, which documentation shall be reasonably satisfactory to Lender in all respects, and shall deliver an opinion of counsel of the Single Purpose Entity Transferee covering the Assumption Agreement in form and substance similar to the due execution, delivery and enforcement opinions delivered by counsel to Borrower in connection with the execution of this Security Instrument, (f) the Single Purpose Entity Transferee shall deliver any certificates and opinions of counsel, enter into agreements and covenants, or cause each of its security general partners (or any increased risk other principal thereof) to deliver certificates, enter into agreements and covenants, which certificates, agreements, opinions of default hereunder counsel and covenants shall be similar in order nature to declare those delivered, executed and made by Borrower or any general partner of Borrower in connection with the Indebtedness immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge execution of this Security Instrument or transfer the Securitization (hereinafter defined) relating to the single purpose nature of the Property without Beneficiary's consent. This provision Single Purpose Entity Transferee or otherwise, and (g) Borrower shall apply deliver, at its sole cost and expense, an endorsement to every salethe existing title policy insuring the Security Instrument as modified by the Assumption Agreement as a valid first lien on the Property, conveyance, alienation, mortgage, encumbrance, pledge or transfer naming the Single Purpose Entity Transferee as owner of the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer fee estate of the Property.
(d) Beneficiary's consent to one sale, conveyancewhich endorsement shall insure that, alienationas of the date of the recording of the Assumption Agreement, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Beneficiary's right to require such consent subject to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge additional exceptions or transfer of liens other than those contained in the Property made in contravention original title policy insuring the lien of this Section shall be null Security Instrument and void and of no force and effect.
(e) Trustor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary delivered in connection with the reviewexecution of this Security Instrument. Any and all reasonable costs incurred in connection with the above (including Xxxxxx's counsel's fees and disbursements and expenses and all recording fees, approval mortgage or intangible taxes, and documentation title insurance premiums), shall be paid by Xxxxxxxx. Lender shall respond to Xxxxxxxx's request to transfer legal title to the Property within thirty (30) days of any delivery of all of the information required by subsections (a)-(g) above. The failure of Lender to respond to such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's request shall not be deemed consent to the sale or transfer of the 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 Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs)transfer.
Appears in 1 contract
Transfer or Encumbrance of the Property. (a) Trustor Mortgagor acknowledges that Beneficiary Mortgagee has examined and relied on the creditworthiness and experience of Trustor Mortgagor, EHA IV and Guarantor in owning and operating properties such as the Property in agreeing to make the Loanloan secured by this Mortgage, and that Beneficiary Mortgagee will continue to rely on TrustorMortgagor's ownership of the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Mortgagor acknowledges that Beneficiary Mortgagee has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Mortgagor default in the repayment of the IndebtednessDebt, Beneficiary Mortgagee can recover the Indebtedness Debt by a sale of the Property. Trustor So long as any amounts remain outstanding under the Note or Other Loan Documents, Mortgagor shall not, without the prior written consent of BeneficiaryMortgagee, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Property or any part thereof, or permit the 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 Section 5.3 shall be deemed to include include: (i) ----------- an installment sales agreement wherein Trustor Mortgagor agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor Mortgagor leasing all or a substantial part of the 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, TrustorMortgagor's right, title and interest in and to any Leases or any PaymentsProfits; and (iii) if Trustor or any general partner or managing member of Trustor 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 50% 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 Trustor or any general partner of Trustor is a limited or general partnership, joint venture or limited liability company, the change, removal, removal or resignation or addition of a general partner, managing partner, or joint venturer EHA IV or the transfer of any ownership interest of any general partner, managing partner or joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (v) if Trustor is a limited partnership, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests of EHA IV; PROVIDED, HOWEVER, that the foregoing provision shall not prohibit or restrict the creation or issuance transfer of new limited partnership intereststhe lesser of: (A) up to forty-nine percent (49%) of the ownership interests in EHA IV, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (viB) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interests. Notwithstanding anything herein to the contrary, the following transfers such lesser amount of ownership interests in any Trustor entity EHA IV as shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from by the death of an individual, including without limitation, pursuant to a will, trust or intestate proceedingLicense Agreement.
(c) Beneficiary No sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property, or of any interest therein, shall be permitted during the term of the Loan without Mortgagee's prior written approval (except for leases in the ordinary course of business entered into in accordance with the terms of this Mortgage). 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 Indebtedness Debt immediately due and payable upon TrustorMortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property without Beneficiary's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property.
(d) Beneficiary's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Beneficiary's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in contravention of this Section shall be null and void and of no force and effect.
(e) Trustor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's consent to the sale or transfer of the 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 Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs).,
Appears in 1 contract
Transfer or Encumbrance of the Property. (a) Trustor Borrower acknowledges that Beneficiary Lender has examined and relied on the creditworthiness and experience of Trustor Borrower in owning and operating properties such as the Property in agreeing to make the LoanLoan secured hereby, and that Beneficiary Lender will continue to rely on TrustorBorrower's ownership of the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Borrower acknowledges that Beneficiary Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Borrower default in the repayment of the IndebtednessDebt, Beneficiary Lender can recover the Indebtedness Debt by a sale of the Property. Trustor shall notSubject to the provisions of Section 12(b) below, without the prior written consent of BeneficiaryLender (which consent may not be unreasonably withheld or delayed):
(i) neither Borrower nor any other Person shall, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, sell, transfer, convey, mortgage, pledge, or assign any interest in, or encumber, alienate, mortgagexxxxx x xxxx in or against, encumberor grant or enter into any easement, pledge covenant or otherwise transfer other agreement granting rights in or restricting the use or development of, (A) the Property or any part thereof, or permit the Property (B) any direct or indirect partnership interest, membership interest, shares of stock, beneficial interest or any part thereof to be soldother ownership interest (in whole or in part) in Borrower or in any partner, conveyedmember, alienatedshareholder, mortgaged, encumbered, pledged beneficiary or otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge other direct or transfer within the meaning of this Section 5.3 shall be deemed to include (i) ----------- an installment sales agreement wherein Trustor agrees to sell the Property indirect holder or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a saleinterest therein, assignment or other transfer of, or the grant of a security interest in, Trustor's right, title and interest in and to any Leases or any Payments; (iii) if Trustor or any general partner or managing member of Trustor 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 50% 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 Trustor or any general partner of Trustor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, or joint venturer or the transfer of any ownership interest of any general partner, managing partner or joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (v) if Trustor is a limited partnership, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or the creation or issuance of new limited partnership interests, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interests. Notwithstanding anything herein to the contrary, the following transfers through each tier of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from with the death of an individual, including without limitation, pursuant to a will, trust or intestate proceeding.
(c) Beneficiary intention that the foregoing restrictions shall not be required to demonstrate any actual impairment avoided by the use of its security multiple tiers of ownership of direct or any increased risk of default hereunder indirect interests in order to declare the Indebtedness immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property without Beneficiary's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property.
(d) Beneficiary's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Beneficiary's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in contravention of this Section shall be null and void and of no force and effect.
(e) Trustor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's consent to the sale or transfer of the 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 uncuredBorrower;
(ii) the proposed transferee ("TRANSFEREE") no new partner, member, shareholder, beneficiary or other legal or equitable owner shall be a reputable entity admitted to or person created in Borrower or in any partner, member, shareholder, beneficiary or other direct or indirect holder of good characterany interest therein, creditworthythrough each tier of ownership with the intention that the foregoing restrictions shall not be avoided by the use of multiple tiers of ownership of direct or indirect interests in Borrower, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Beneficiary;(nor shall any existing general partner or member or controlling limited partner withdraw from Borrower); and
(iii) the Transferee and its property manager (if any) there shall have sufficient experience be permitted no change in the organizational documents of, nor any withdrawal, resignation, removal or other change of status on the part of any partner, member, officer, director, manager or other Person from or with respect to his, her or its position of authority or control in, any of Borrower or any partner, member, shareholder, beneficiary or other legal or equitable owner of Borrower, or any partner, member, shareholder, beneficiary or other direct or indirect holder of any interest therein (through each tier of ownership and management with the intention that these restrictions shall not be avoided by the use of properties similar to multiple tiers of ownership of direct or indirect interests in Borrower), if any such occurrence shall result in a change in control of the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such TransfereeBorrower or Borrower's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs)affairs.
Appears in 1 contract
Samples: Mortgage Agreement (Ramco Gershenson Properties Trust)
Transfer or Encumbrance of the Property. (a) Trustor Borrower acknowledges that Beneficiary Grantee has examined and relied on the creditworthiness creditworthiness, reputation and experience status of Trustor in owning and operating the Property Borrower in agreeing to make the Loanloan secured hereby, and that Beneficiary Grantee will continue to rely on Trustor's Borrower’s ownership and Master Tenant’s leasing and operation of the Property and as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Borrower acknowledges that Beneficiary Grantee has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Borrower default in the repayment of the IndebtednessDebt, Beneficiary Grantee can recover the Indebtedness Debt by a sale of the Property. Trustor shall notSubject to the provisions of subsection 12(b) below, without the prior written consent of BeneficiaryGrantee:
(i) except as otherwise provided herein or in any of the Loan Documents, no Borrower, nor any other Person, shall, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, sell, transfer, convey, mortgage, pledge, or assign any interest in, or encumber, alienate, mortgagexxxxx x Xxxx in or against, encumberor grant or enter into any easement, pledge covenant or otherwise transfer other agreement granting rights in or restricting the use or development of, (A) the Property or any part thereof, or permit the Property (B) any partnership interest, membership interest, shares of stock, beneficial interest or any part thereof to be soldother ownership interest (in whole or in part) in any Borrower or in any partner, conveyedmember, alienatedshareholder, mortgaged, encumbered, pledged Grantee or otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge other direct or transfer within the meaning of this Section 5.3 shall be deemed to include (i) ----------- an installment sales agreement wherein Trustor agrees to sell the Property indirect holder or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a saleinterest therein, assignment or other transfer of, or the grant of a security interest in, Trustor's right, title and interest in and to any Leases or any Payments; (iii) if Trustor or any general partner or managing member of Trustor 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 50% 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 Trustor or any general partner of Trustor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, or joint venturer or the transfer of any ownership interest of any general partner, managing partner or joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (v) if Trustor is a limited partnership, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or the creation or issuance of new limited partnership interests, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interests. Notwithstanding anything herein to the contrary, the following transfers through each tier of ownership with the intention that the foregoing restrictions shall not be avoided by the use of multiple tiers of ownership of direct or indirect interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposesBorrower; and (ii) any transfers resulting from the death of an individual, including without limitation, pursuant to a will, trust or intestate proceeding.
(c) Beneficiary shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Indebtedness immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property without Beneficiary's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property.
(d) Beneficiary's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Beneficiary's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in contravention of this Section shall be null and void and of no force and effect.
(e) Trustor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's consent to the sale or transfer of the 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;and
(ii) the proposed transferee ("TRANSFEREE") no new partner, member, shareholder, Grantee or other legal or equitable owner shall be a reputable entity admitted to or person created in any Borrower or in any partner, member, shareholder, Grantee or other direct or indirect holder of good characterany interest therein, creditworthythrough each tier of ownership with the intention that the foregoing restrictions shall not be avoided by the use of multiple tiers of ownership of direct or indirect interests in any Borrower, with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Beneficiary;(nor shall any existing general partner or member or controlling limited partner withdraw from any Borrower); and
(iii) the Transferee and its property manager (if any) there shall have sufficient experience be permitted no change in the organizational documents of, nor any withdrawal, resignation, removal or other change of status on the part of any partner, member, officer, director, manager or other Person from or with respect to his, her or its position of authority or control in, any Borrower or in any partner, member, shareholder, Grantee or other legal or equitable owner of any Borrower, or any partner, member, shareholder, Grantee or other direct or indirect holder of any interest therein (through each tier of ownership and management with the intention that these restrictions shall not be avoided by the use of properties similar to multiple tiers of ownership of direct or indirect interests in any Borrower), if any such occurrence shall result in a change in control of the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs)any Borrower or any Borrower’s affairs.
Appears in 1 contract
Transfer or Encumbrance of the Property. (a) Trustor Grantor acknowledges that Beneficiary has examined and relied on the creditworthiness and experience of Trustor Grantor and its general partner, limited partners and beneficial owners in owning and operating properties such as the Property in agreeing to make the Loanloan secured by this Deed of Trust, and that Beneficiary will continue to rely on TrustorGrantor's ownership of interest in the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Grantor acknowledges that Beneficiary has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Grantor default in the repayment of the IndebtednessDebt, Beneficiary can recover the Indebtedness Debt by a sale of the Property. Trustor Grantor shall not, without the prior written consent of Beneficiary, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer its interest in the Property or any part thereof, or permit the 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 Section 5.3 shall be deemed to include include: (i) ----------- an a land contract or other form of installment sales agreement wherein Trustor Grantor agrees to sell its interest in the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor Grantor leasing all or a substantial part of the 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, TrustorGrantor's right, title and interest in and to any Leases or any PaymentsRents; (iii) if Trustor Grantor, Guarantor, or any general partner or managing member of Trustor Grantor is a corporation, the voluntary or involuntary sale, exchange, 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 stock, in one or a series of transactions by which an aggregate of more than 50% forty-nine percent (49%) 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; (iv) if Trustor Grantor, Guarantor or any general partner or managing member (or if no managing member, any member) of Trustor Grantor 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 venturer, or the transfer or pledge of any ownership the partnership interest of any general partner, managing partner or joint venturer or any profits or proceeds related thereto or the transfer, assignment pledge, issuance or pledge creation, in one or a series of any ownership interest transactions, of any general partner, managing partner limited partnership interests by which more than forty-nine percent (49%) of such limited partnership interests shall be vested in a party or joint venturerparties who are not now limited partners; and (v) if Trustor Grantor or any general partner or member of Grantor is a limited partnershipliability company, (A) the change, removal or resignation of a managing member (or if no managing member, any member) or the transfer of the membership interests or "units" of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interests or "units", or (B) the voluntary or involuntary sale, conveyanceexchange, conveyance or transfer of membership interests or pledge of any "units" in such limited partnership interests liability company, or the creation or issuance of new limited partnership interests, membership interests or "units" in one or a series of transactions by which an aggregate of more than 50% forty-nine percent (49%) of such limited partnership company's membership interests are held by or "units" shall be vested in a party or parties who are not currently now members; provided, however, that such limitation shall not operate to restrict the free transferability of stock in Equity Inns, Inc., a Tennessee corporation or, subject to subsection (iv) above, issuance of limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interestspartnership units in Guarantor. Notwithstanding anything herein to the contraryforegoing, the following transfers of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereundertransfer for purposes of this Section 13: (ix) any transfers into transfer by devise or out descent or by operation of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from law upon the death of a partner of Grantor or of any Guarantor, or (y) a sale or transfer of a partnership interest in Grantor by a current partner to an individualimmediate family member (i.e., including without limitationparents, pursuant spouses, siblings, children or grandchildren) of such partner or to a will, trust or intestate proceedingfor the benefit of an immediate family member of such partner.
(c) No sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of Gxxxxxx’s interest in the Property, shall be permitted during the term of the Loan without Beneficiary's prior written approval. Beneficiary shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Indebtedness Debt immediately due and payable upon TrustorGrantor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of its interest in the Property without Beneficiary's consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of its interest in the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of Grantor’s interest in the Property.
(d) Beneficiary's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of Gxxxxxx’s interest in the Property shall not be deemed to be a waiver of Beneficiary'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 Property made in contravention of this Section shall be null and void and of no force and or effect.
(e) Trustor Grantor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable Beneficiary's out-of-pocket attorneys' ’ fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary in connection with the review, approval or disapproval, and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's consent to the sale or transfer of the 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 Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs).
Appears in 1 contract
Samples: Deed of Trust (Equity Inns Inc)
Transfer or Encumbrance of the Property. (a) Trustor Borrower acknowledges that Beneficiary ---------------------------------------- Lender has examined and relied on the creditworthiness creditworthiness, reputation and experience status of Trustor in owning and operating the Property Borrower in agreeing to make the Loanloan secured hereby, and that Beneficiary Lender will continue to rely on TrustorBorrower's ownership of the Property and as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Borrower acknowledges that Beneficiary Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Borrower default in the repayment of the IndebtednessDebt, Beneficiary Lender can recover the Indebtedness Debt by a sale of the Property. Trustor shall notSubject to the provisions of subsection 12(b) through 12(d) below, inclusive, without the prior written consent of BeneficiaryLender, except as otherwise provided herein or in any of the Loan Documents, no Borrower, nor any other person, shall, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, sell, transfer, convey, mortgage, pledge, or assign any interest in, or encumber, alienate, mortgagexxxxx x xxxx in or against, encumberor grant or enter into any easement, pledge covenant or otherwise transfer other agreement granting rights in or restricting the use or development of the Property or any part thereof, or permit the Property or any part thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred.
(b1) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Section 5.3 shall be deemed to include (i) ----------- an installment sales agreement wherein Trustor Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; and (ii2) an agreement by Trustor Borrower leasing all or a substantial part of the 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, TrustorBorrower's right, title and interest in and to any Leases leases or any Payments; (iii) if Trustor or any general partner or managing member of Trustor 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 50% 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 Trustor or any general partner of Trustor is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, or joint venturer or the transfer of any ownership interest of any general partner, managing partner or joint venturer or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (v) if Trustor is a limited partnership, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or the creation or issuance of new limited partnership interests, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interests. Notwithstanding anything herein to the contrary, the following transfers of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from the death of an individual, including without limitation, pursuant to a will, trust or intestate proceedingrents.
(cb) Beneficiary shall not be The occurrence of any of the foregoing transfers or other occurrences described in the foregoing subsection 12(a) shall, unless otherwise approved in writing by Lender, constitute an Event of Default (as defined below) hereunder, regardless of whether any such transfer or occurrence was caused instituted by Borrower or any other person, whereupon Lender at its option, without being required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to hereunder, declare the Indebtedness Debt immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property without Beneficiary's consentpayable. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property or other occurrence described in subsection 12(a) above, regardless of whether voluntary or not, or whether or not Beneficiary Lender has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the PropertyProperty or other occurrence described in subsection 12(a) above.
(dc) Beneficiary's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Beneficiary's right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in contravention of this Section shall be null and void and of no force and effect.
(e) Trustor Borrower agrees to bear and shall pay or reimburse Beneficiary Lender on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary Lender in connection with the review, approval and documentation of any sale, conveyance, alienation, mortgage, encumbrance, pledge, transfer or other transaction or event described in subsection 12(a) above related to such Borrower.
(d) Lender's consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(ftransfer of the Property or any part thereof or any other transaction or event described in subsection 12(a) Beneficiaryabove shall not be deemed to be a waiver of Lender's right to require such consent to the sale any future occurrence of same. Any attempted or purported sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property will not be unreasonably withheld after consideration or of all relevant factorsany direct or indirect interest in Borrower, provided that:
(iand any other transfer described in subsection 12(a) no Event above, if made in contravention 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") this Section 12, shall be a reputable entity or person null and void and ---------- of good character, creditworthy, with sufficient financial worth considering the obligations assumed no force and undertaken, as evidenced by financial statements and other information reasonably requested by Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs)effect.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Cytation Corp)
Transfer or Encumbrance of the Property. (a) Trustor Borrower acknowledges that Beneficiary Lender has examined and relied on the creditworthiness and experience of Trustor Borrower and, in connection with Borrower’s organizational structure, the beneficial and legal owners of Borrower at all organizational tiers or levels, without limitation, any general partner, managing member, limited partner, member and beneficial owner, as applicable, in owning and operating properties such as the Property in agreeing to make the Loanloan secured by this Deed, and that Beneficiary Lender will continue to rely on Trustor's Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Borrower acknowledges that Beneficiary Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Borrower default in the repayment of the IndebtednessDebt, Beneficiary Lender can recover the Indebtedness Debt by a sale of the Property. Trustor Borrower shall not, without the prior written consent of BeneficiaryLender, directly or indirectly sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Property or the Ground Lease or any part thereofthereof or any interest therein, or permit the 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 Section 5.3 shall be deemed to include include: (i) ----------- an installment sales agreement wherein Trustor Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor Borrower leasing all or a substantial part of the 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, Trustor's Borrower’s right, title and interest in and to any Leases or any PaymentsProfits; (iii) if Trustor Borrower, Guarantor, or any general partner or managing member of Trustor Borrower is a corporation, the merger, consolidation or voluntary or involuntary sale, exchange, conveyance or transfer of such corporation's ’s stock (or the stock of any corporation directly or indirectly (at any tier) controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock stock, in one or a series of transactions by transactions, in any such case the result of which is that an aggregate of more than 50% forty-nine percent (49%) of such corporation's ’s stock (or such controlling corporation’s stock) shall be vested vested, legally or beneficially, in a party or parties who are not now stockholders legal or any change in the control of such corporationbeneficial stockholders; (iv) if Trustor Borrower, Guarantor or any general partner or managing member (or if no managing member, any member) of Trustor Borrower is a limited or general partnershippartnership or joint venture, joint venture (A) any merger or limited liability companyconsolidation of such entity or of any entity directly or indirectly (at any tier) controlling such entity, (B) the change, removal, removal or resignation or addition of a general partner, managing partner or joint venturer, the admission of a new general partner, managing partner or joint venturer venturer, or the direct or indirect (at any tier) transfer or pledge of any ownership interest the legal or beneficial rights to the partnership interests of any general partner, managing partner or joint venturer or the transferany profits or proceeds related thereto, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (vC) if Trustor is a limited partnership, the voluntary or involuntary merger, consolidation, sale, conveyanceexchange, conveyance or direct or indirect (at any tier) transfer of legal or pledge of any limited beneficial rights to the profits or other partnership interests in such partnership or joint venture, or the creation or issuance of new limited partnership interests, by in one or a series of transactions, in any such case the result of which is that an aggregate of more than 50% forty-nine percent (49%) of such limited entity’s partnership or venturer interests are held by shall be vested, legally or beneficially, in a party or parties who are not currently limited partnersnow partners or venturers; or (viv) if Trustor Borrower, Guarantor or any general partner or member of Borrower or Guarantor is a limited liability company, (A) any merger or consolidation of such entity or of any entity directly or indirectly (at any tier) controlling such entity, (B) the change, removal or resignation of a managing member or of a non-member manager (or if no managing member or non-member manager, any member), or the direct or indirect (at any tier) transfer of the legal or beneficial ownership of membership interests or “units” of a managing member or of a non-member manager (or if no managing member or non-member manager, any member) or any profits or proceeds relating to such membership interests or “units”, or (C) the voluntary or involuntary sale, exchange, conveyance or direct or indirect (at any tier) transfer of membership interests or “units” in such limited liability company, or the creation or issuance of new membership interests or “units” in one or a series of transactions, in any such case the result of which is that an aggregate of more than 50% forty-nine percent (49%) of such company’s membership interests or “units” shall be vested, legally or beneficially, in a party or parties who are not now members; and (vi) the removal, resignation or substitution of the members' Manager or the merger, consolidation or voluntary or involuntary sale, exchange, conveyance or direct or indirect (at any tier) transfer of the controlling interest in the Manager’s stock, partnership interests or membership interests, as applicable, from parties who are not now currently holders of such ownership interests. Notwithstanding anything herein in conflict or to the contrarycontrary contained in this Section 13, the transfers and/or encumbrances prohibited or restricted hereby shall specifically not include: (1) the granting of any Lease permitted hereunder or elsewhere in the Loan Documents, (2) the granting of any utility, access or cable television easements in the ordinary course of development or business which are necessary to obtain services for the Property, (3) the transfer of any limited partnership interest in Borrower so long as Patriot LP or an affiliate thereof at all times controls, directly or indirectly, at least fifty-five percent (55%) of all partnership interests, voting and nonvoting, in Borrower, (4) any involuntary liens being filed against any portion of Property which are not in violation of the terms of this Deed, (5) any action by or activity with respect to Guarantor other than one which results in an aggregate of more than fifty percent (50%) of Guarantor’s stock being transferred to an unrelated entity, (6) any FF&E Financing or refinancing thereof pursuant to the terms of Section 10(s) hereof, or (7) any Replacements (as defined in the Replacement Reserve Agreement), (8) any sale, assignment, exchange, conveyance or transfer referenced above, so long as following transfers any such transaction or event, not less than fifty-one percent (51%) of the outstanding voting and equity interests in Borrower, and not less than fifty-one percent (51%) of the outstanding voting and equity interests in Borrower’s general partner, shall be directly or indirectly owned beneficially by Guarantor or a Wyndham Successor (the term “Wyndham Successor” meaning an entity that (x) results from any merger or consolidation of Guarantor with any other entity or to which there is transferred, directly or indirectly, beneficial ownership of all or any substantial part of the assets of Guarantor, (y) assumes in writing or otherwise becomes liable for Guarantor’s obligations under the Guaranty and the Environmental Agreement, and (z) and whose creditworthiness is otherwise reasonably acceptable to Lender), or (9) the transfer of equity interests in any Trustor partner in Borrower or in other Wyndham Entity (as defined herein) other than Borrower, to another Wyndham Entity (the term “Wyndham Entity” meaning any entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunderthat satisfies both of the following: (i) such entity directly or indirectly owns an interest in any transfers into or out of a trustpartner in Borrower, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from at least fifty-one percent (51%) of the death of an individualequity interests in such entity are owned, including without limitationdirectly or indirectly, pursuant by Guarantor) (the foregoing clauses 1 through 9 being referred to a willherein as, trust or intestate proceeding.the “Permitted Transfers”)
(c) Beneficiary Except for the Permitted Transfers, no conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property, or of any interest therein or in the Ground Lease, 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 Indebtedness Debt immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Borrower’s violation of the Property without Beneficiary's consentthis Section 13. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property or in the Ground Lease regardless of whether voluntary or not, or whether or not Beneficiary Lender has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the PropertyProperty or in the Ground Lease.
(d) Beneficiary's Lender’s consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Beneficiary's Lender’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 Property made in contravention of this Section shall be null and void and of no force and or effect.
(e) Trustor Borrower agrees to bear and shall pay or reimburse Beneficiary Lender on demand for all reasonable expenses (including, without limitation, Lender’s reasonable out-of-pocket attorneys' ’ fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary Lender in connection with the review, approval or disapproval, and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's consent to the sale or transfer of the 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 Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs).
Appears in 1 contract
Transfer or Encumbrance of the Property. (a) Trustor Borrower acknowledges that Beneficiary Lender, in agreeing to make the Loan, has examined and relied on the creditworthiness and experience of Trustor the Borrower Parties in owning and operating properties such as the Property in agreeing to make the LoanProperty, and that Beneficiary Lender will continue to rely on Trustor's Borrower’s ownership and operation of the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Borrower acknowledges that Beneficiary Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Borrower default in the repayment of the IndebtednessDebt, Beneficiary Lender can recover all or a portion of the Indebtedness Debt by a sale of the PropertyProperty or a part thereof. Trustor Accordingly, subject to the terms of this Section 5.22, and Borrower shall not, without the prior written consent of BeneficiaryLender, (i) effectuate a Transfer of, or (ii) sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer Transfer, the Property Property, or any part thereofthereof or any legal or beneficial interest therein, directly or indirectly, or permit the Property Transfer of the Property, or any part thereof or any interest therein, other than pursuant to be sold, conveyed, alienated, mortgaged, encumbered, pledged Leases of space pursuant to Section 5.15 or otherwise transferreda Permitted Transfer.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer within the meaning of this Section 5.3 5.22 shall be deemed to include include: (i) ----------- an installment sales agreement wherein Trustor Borrower agrees to sell the Property or any part thereof or any interest therein for a price to be paid in installments; (ii) an agreement by Trustor Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder thereunder, or a sale, assignment or other transfer of, or the grant of a security interest in, Trustor's Borrower’s right, title and interest in and to any Leases or any PaymentsRents, except as specifically permitted by the Loan Documents; (iii) if Trustor Borrower or any general partner or managing member of Trustor Borrower (or any indirect owner of a legal or beneficial interest in Borrower or any constituent partner or member of Borrower no matter how remote) is a corporation, the voluntary or involuntary sale, conveyance or transfer Transfer of such corporation's ’s stock or any portion thereof (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 50% any of such corporation's ’s stock or any portion thereof shall be vested in a party or parties who are not now existing stockholders as of the date hereof or results in any change in the ultimate ownership or control of such corporationcorporation (no matter how remote); (iv) if Trustor Borrower or any general partner or member of Trustor Borrower (or other indirect owner of a legal or beneficial interest in Borrower or any constituent partner or member of Borrower no matter how remote) is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, or joint venturer or member or the transfer Transfer of the partnership or membership interest of any partner or any member or the Transfer of the legal or beneficial interest of any joint venturer, partner or member; (v) if Borrower is a limited or general partnership, joint venture, limited liability company, trust, nominee trust, tenancy in common or other unincorporated form of business association or form of ownership interest, the Transfer of any legal or beneficial interest (including any economic or profits interest) of any Person having a direct or indirect legal or beneficial ownership interest in Borrower, including any legal or beneficial interest in any constituent partner or member of Borrower; (vi) any instrument subjecting the Property to a condominium regime or transferring ownership to a cooperative corporation; (vii) the dissolution or termination of Borrower or any general partner, managing member, manager or member manager of Borrower or any constituent member or partner of Borrower or the merger or consolidation of Borrower or any general partner or joint venturer member of Borrower with any other Person; (viii) any transfer of a direct or the transferindirect, assignment legal or pledge of any beneficial ownership interest of any general partner, managing partner or joint venturerin Borrower; (vix) if Trustor is any other transaction or Transfer or assignment which results in the Principals ceasing to have sole management and operating control of Borrower, directly or indirectly, and the right to make all day to day operating decisions with respect to Borrower; (x) any other transaction pursuant to which any Person not holding a limited partnershipdirect or indirect, legal or beneficial ownership interest in Borrower on the voluntary Closing Date acquires a direct or involuntary saleindirect (and no matter how remote), conveyancelegal or beneficial ownership interest in Borrower; (xi) any swap, transfer derivative or pledge other transaction shifting the risks and rewards of any limited partnership interests or the creation or issuance of new limited partnership interests, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% ownership of the members' interests. Notwithstanding anything herein to Property, unless otherwise expressly required by the contrary, the following transfers of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: Loan Documents; (ixii) any transfers into transaction pursuant to which any Person is granted an option to purchase all or out any portion of a trustthe Property or any direct, family limited partnershipindirect, legal or other similar entity or device for tax or estate planning purposesbeneficial interest in Borrower; and (iixiii) any transfers resulting from the death of an individualtransaction, including without limitation, agreement or arrangement pursuant to a willwhich any Person is given any right to control, trust direct or intestate proceedingveto any material actions or decisions by Borrower, directly or indirectly, whether through an ownership interest, contract right or otherwise.
(c) Beneficiary Notwithstanding the foregoing, a Permitted Transfer shall be permitted without the Lender’s consent, provided that the Borrower provides Lender with a certificate stating that the following conditions have been satisfied (provided, however, that no such certificate from Borrower shall be required with respect to any Permitted Transfer which is made pursuant to and is permitted under the terms of any intercreditor agreement to which Borrower and Lender are each a party): (A) no Event of Default shall have occurred and be continuing and such sale or conveyance shall not result in an Event of Default and (B) the requirements for a Single Purpose Entity pursuant to Section 4.1(s) hereof and the Organizational Documents of the Borrower continue to be satisfied. In the event Lender, in its reasonable discretion, determines that any of the foregoing conditions has not been satisfied, Lender shall notify Borrower in writing of such determination no later than five (5) Business Days after Lender’s receipt of the Borrower’s certification.
(d) Lender shall not be required to demonstrate any actual impairment or prejudice of its security or any increased risk of default hereunder in order to declare the Indebtedness Debt immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer any Transfer of the Property or any interest therein (other than a Permitted Transfer) made or effected without Beneficiary's consentLender’s prior written consent which may be granted, withheld, delayed or conditioned in Lender’s sole and absolute discretion. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Property or any interest therein (other than a Permitted Transfer) regardless of whether voluntary or not, or whether or not Beneficiary Lender has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the PropertyProperty or any interest therein. Notwithstanding anything to the contrary contained in this Section 5.22, no Transfer of the Property or any interest therein (whether or not such Transfer shall constitute a Permitted Transfer) shall be made to any Prohibited Person.
(de) Beneficiary's Lender’s consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Property or any part thereof or any interest therein shall not be deemed to be a waiver of Beneficiary's Lender’s right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer Transfer of the Property or any part thereof or any interest therein. Any Transfer of the Property or any part thereof or any interest therein made in contravention of this Section 5.22 shall be null and void and of no force and effect.
(ef) Trustor Borrower agrees to bear and shall pay or reimburse Beneficiary Lender on demand for all reasonable costs and expenses (includingincluding title search costs, without limitation, title insurance endorsement premiums and reasonable attorneys' ’ fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary Lender in connection with the review, approval and documentation of any proposed Transfer of the Property or any part thereof or any interest therein, including Permitted Transfers, whether or not such saleconsent is granted, conveyancewithheld, alienation, mortgage, encumbrance, pledge conditioned or transferdenied.
(fg) Beneficiary's consent to Without limiting the sale or transfer generality of the restrictions on Transfers of the Property will not be unreasonably withheld after consideration or any part thereof or any interest therein set forth in this Section 5.22, each and/or any Transfer of all relevant factors, provided that:
(i) no Event of Default the Property or event which with the giving of notice any part thereof or the passage of time would constitute an Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("TRANSFEREE") any interest therein shall be conditioned upon the satisfaction of one or more of the following conditions as may be deemed appropriate or desirable by Lender under the circumstances: (a) a reputable entity or person modification 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 Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of hereof, the Note, the Security Instrument or the other Loan Documents; (b) an assumption of this Deed of Trust Agreement, the Note, the Security Instrument and the other Loan DocumentsDocuments as so modified by the proposed transferee, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiarysubject to the provisions of Section 9.1 hereof; and
(vc) Beneficiary shall have received the payment of all costs of fees and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' Transfer including, without limitation, the cost of any third party reports, legal fees and costs)expenses, or required legal opinions; (d) the proposed transferee’s continued compliance with the representations and covenants set forth herein; and (e) the delivery of evidence satisfactory to Lender that the single purpose nature and bankruptcy remoteness of Borrower, its shareholders, partners or members, as the case may be, following such Transfer are in accordance with the then current standards of Lender. In addition to the foregoing, each and/or any Transfer of the Property or any part thereof or any interest therein shall be conditioned upon the satisfaction of such other conditions as Lender shall determine in its reasonable discretion to be in the interest of Lender, including, without limitation, the creditworthiness, reputation and qualifications of the transferee with respect to the Loan and the Property or any part thereof.
Appears in 1 contract
Transfer or Encumbrance of the Property. (a) Trustor Grantor acknowledges that Beneficiary has examined and relied on the creditworthiness and experience of Trustor Grantor and its general partner, managing member, limited partners, members and beneficial owners, as applicable, in owning and operating properties such as the Property in agreeing to make the Loanloan secured by this Deed of Trust, and that Beneficiary will continue to rely on Trustor's Grantor’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Grantor acknowledges that Beneficiary has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Grantor default in the repayment of the IndebtednessDebt, Beneficiary can recover the Indebtedness Debt by a sale of the Property. Trustor Grantor shall not, without the prior written consent of Beneficiary, directly or indirectly, sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Property all or any part thereofof the Property, or permit the Property all or any part thereof of the Property to be sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred, except as expressly provided herein or in the Loan Documents.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Section 5.3 shall be deemed to include include: (i) ----------- an installment sales agreement wherein Trustor Grantor agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor Grantor leasing all or a substantial part of the 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, Trustor's Grantor’s right, title and interest in and to any Leases or any PaymentsProfits; (iii) if Trustor Grantor, Guarantor, or any general partner or managing member of Trustor Grantor is a corporation, the merger, consolidation or voluntary or involuntary sale, exchange, conveyance or transfer of such corporation's ’s stock (or the stock of any corporation directly or indirectly (at any tier) controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock stock, in one or a series of transactions by transactions, in any such case the result of which is that an aggregate of more than 50% forty-nine percent (49%) of such corporation's ’s stock (or such controlling corporation’s stock) shall be vested vested, legally or beneficially, in a party or parties who are not now stockholders or any change in the control of such corporationstockholders; (iv) if Trustor Grantor, Guarantor or any general partner or managing member (or if no managing member, any member) of Trustor Grantor is a limited or general partnership, joint venture (A) any merger or limited liability companyconsolidation of such entity or of any entity directly or indirectly (at any tier) controlling such entity, (B) the change, removal, removal or resignation or addition of a general partner or managing partner, the admission of a new general partner or managing partner, or joint venturer the direct or indirect (at any tier) transfer or pledge of the transfer of any ownership interest legal or beneficial rights to the partnership interests of any general partner, partner or managing partner or joint venturer any profits or the transferproceeds related thereto, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (vC) if Trustor is a limited partnership, the voluntary or involuntary merger, consolidation, sale, conveyanceexchange, conveyance or direct or indirect (at any tier) transfer of legal or pledge of any limited beneficial rights to the profits or other partnership interests in such partnership or joint venture, or the creation or issuance of new limited partnership interests, by in one or a series of transactions, in any such case the result of which is that an aggregate of more than 50% forty-nine percent (49%) of such limited entity’s partnership interests are held by shall be vested, legally or beneficially, in a party or parties who are not currently limited now partners; or (viv) if Trustor Grantor, Guarantor or any general partner or member of Grantor or Guarantor is a limited liability company, (A) any merger or consolidation of such entity or of any entity directly or indirectly (at any tier) controlling such entity, (B) the change, removal or resignation of a managing member or of a non-member manager (or if no managing member or non-member manager, any member), or the direct or indirect (at any tier) transfer of the legal or beneficial ownership of membership interests or “units” of a managing member or of a non-member manager (or if no managing member or non-member manager, any member) or any profits or proceeds relating to such membership interests or “units”, or (C) the voluntary or involuntary sale, exchange, conveyance or direct or indirect (at any tier) transfer of membership interests or “units” in such limited liability company, or the creation or issuance of new membership interests or “units” in one or a series of transactions, in any such case the result of which is that an aggregate of more than 50% forty-nine percent (49%) of such company’s membership interests or “units” shall be vested, legally or beneficially, in a party or parties who are not now members; and (vi) the removal, resignation or substitution of the members' General Partner or of the Accommodation Grantor’s General Partner or the merger, consolidation or voluntary or involuntary sale, exchange, conveyance or direct or indirect (at any tier) transfer of the controlling interest in the General Partner’s or Accommodation Grantor’s General Partner’s stock, partnership interests or membership interests, as applicable, from parties who are not now currently holders of such ownership interests. Notwithstanding anything contained herein to the contrary, the following transfers foregoing restrictions shall not apply to (A) any merger or consolidation of ownership any entity directly or indirectly (at any tier) controlling Guarantor, (B) the direct or indirect (at any tier) transfer or pledge of the legal or beneficial rights to the partnership interests of Guarantor or any profits or proceeds related thereto, or (C) the voluntary or involuntary merger, consolidation, sale, exchange, conveyance or direct or indirect (at any tier) transfer of legal or beneficial rights to the profits or other partnership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnershipGuarantor, or other similar entity the creation or device for tax issuance of new partnership interests in either Guarantor, in one or estate planning purposes; a series of transactions to a party or parties who are not now partners, so long as, (1) RLJ Capital Partners, LLC, a Delaware limited liability company (“RLJ”), remains the sole general partner of each Guarantor, (2) each Guarantor maintains its Net Worth Covenant, and (ii3) any transfers resulting from either Xxxxxx X. Baltimore, Jr., Xxxxxx X. Xxxxxxx or another individual or entity acceptable to Beneficiary in its reasonable discretion, remains or becomes, as the death case may be, the manager and controls the day to day operations of an individual, including without limitation, pursuant to a will, trust or intestate proceedingRLJ.
(c) No sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer all or any part of the Property, shall be permitted during the term of the Loan without Beneficiary’s prior written approval. Beneficiary shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Indebtedness Debt immediately due and payable upon Trustor's Grantor’s sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property without Beneficiary's ’s written consent. This provision shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property.
(d) Beneficiary's ’s consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in accordance with Section 14 of the Note shall not be deemed to be a waiver of Beneficiary's ’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 Property made in contravention of this Section shall be null and void and of no force and or effect.
(e) Trustor Grantor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable Beneficiary’s actual out-of-pocket attorneys' ’ fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary in connection with the review, approval or disapproval, and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's consent to the sale or transfer of the 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 Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs).
Appears in 1 contract
Transfer or Encumbrance of the Property. (ai) Trustor acknowledges Borrowers acknowledge that Beneficiary each Lender, in agreeing to make the Loans, has examined and relied on the creditworthiness and experience of Trustor Borrowers and the other Loan Parties in owning and operating properties such as the Property in agreeing to make the LoanProperty, and that Beneficiary such Lender will continue to rely on Trustor's Borrowers' or such Loan Parties' ownership and operation of the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor acknowledges Borrowers acknowledge that Beneficiary each Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Borrowers default in the repayment of the IndebtednessDebt, Beneficiary each Lender can recover all or a portion of the Indebtedness Debt by a sale of the Property. Trustor Accordingly, subject to the terms of Sections 6.1(i) and 6.1(j)(vi) and (vii) hereof, Borrowers shall notnot and shall not permit any Loan Party to, without the prior written consent of Beneficiaryeach Lender and Administrative Agent, sellTransfer the Property, convey, alienate, mortgage, encumber, pledge or otherwise transfer the Property any other Collateral or any part thereofthereof or any interest therein, or permit the Property Property, or any part thereof or any interest therein, to be sold, conveyed, alienated, mortgaged, encumbered, pledged Transferred other than pursuant to a Permitted Pledge or otherwise transferred.Permitted Encumbrance. 103 110
(bii) A As used herein, a "TRANSFER" shall mean any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within of the meaning of this Section 5.3 shall be deemed to include Property or the other Collateral or any part thereof or interest therein including: (iA) ----------- an installment sales agreement wherein Trustor any Loan Party agrees to sell the Property any Asset, any other Collateral or any part thereof or any interest therein for a price to be paid in installments; (iiB) an agreement by Trustor Borrowers or any other Loan Party leasing all or a substantial part of the Property any Asset for other than actual occupancy by a space tenant thereunder thereunder, or a sale, assignment or other transfer of, or the grant of a security interest in, TrustorBorrowers' or such Loan Party's right, title and interest in and to any Tenant Leases or any PaymentsRents; (iiiC) if Trustor any Loan Party or any general partner or managing member of Trustor any Loan Party is a corporation, the voluntary or involuntary sale, conveyance conveyance, alienation, mortgage, encumbrance, pledge 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 50% of such corporation's stock shall be vested in to a party or parties who are not now stockholders or any change Change in the control Control of such corporation; (ivD) if Trustor any Loan Party or any general partner or member of Trustor any Loan Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, or joint venturer or the transfer of any ownership interest of any general partner, managing partner or joint venturer member or the transfer, assignment or pledge of any ownership interest of any general partner, managing partner or joint venturer; (v) if Trustor is a limited partnership, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or the creation or issuance of new limited partnership interests, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interests. Notwithstanding anything herein to the contrary, the following transfers of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from the death of an individual, including without limitation, pursuant to a will, trust or intestate proceeding.
(c) Beneficiary shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Indebtedness immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property without Beneficiary's consent. This provision shall apply to every partnership interest of any partner or the sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property regardless interest of whether any joint venturer or member; (E) if any Loan Party is a limited or general partnership, joint venture, limited liability company, trust, nominee trust, tenancy in common or other unincorporated form of business association or form of ownership interest, the voluntary or not, or whether or not Beneficiary has consented to any previous involuntary sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property.
(d) Beneficiary's consent to one saleany interest of Person having a direct legal or beneficial ownership interest in any Loan Party, conveyance, alienation, mortgage, encumbrance, pledge including any legal or transfer of the Property shall not be deemed to be a waiver of Beneficiary's right to require such consent to beneficial interest in any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge constituent partner or transfer of the Property made in contravention of this Section shall be null and void and of no force and effect.
(e) Trustor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary in connection with the review, approval and documentation member of any such sale, conveyance, alienation, mortgage, encumbrance, pledge Loan Party; (F) any instrument subjecting any Asset to a condominium regime or transfer.
transferring ownership to a cooperative corporation; and (fG) Beneficiary's consent to the sale dissolution or transfer termination of the Property will not be unreasonably withheld after consideration any Loan Party or any general partner or member of all relevant factors, provided that:
(i) no Event of Default or event which with the giving of notice any Loan Party or the passage merger or consolidation of time would constitute an Event any Loan Party or any general partner or member of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("TRANSFEREE") shall be a reputable entity or person of good character, creditworthy, any Loan Party with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and any other information reasonably requested by Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs)Person.
Appears in 1 contract
Samples: Loan Agreement (Bristol Hotel Co)
Transfer or Encumbrance of the Property. (a) Trustor Borrower acknowledges that Beneficiary Xxxxxx has examined and relied on the creditworthiness of Xxxxxxxx and the experience of Trustor Borrower in owning and operating properties such as the Property in agreeing to make the Loanloan secured hereby, and that Beneficiary Xxxxxx will continue to rely on TrustorXxxxxxxx's ownership of the Property as a means of maintaining the value of the Property as security for repayment of the IndebtednessDebt. Trustor Borrower acknowledges that Beneficiary Xxxxxx has a valid interest in maintaining the value of the Property so as to ensure that, should Trustor Borrower default in the repayment of the IndebtednessDebt, Beneficiary Xxxxxx can recover the Indebtedness Debt by a sale of the Property. Trustor Except as otherwise provided in subparagraph 9(c) hereof, Borrower shall not, without the prior written consent of Beneficiary, not sell, convey, alienatealien, mortgage, encumber, pledge or otherwise transfer the Property or any part thereof, or permit the Property or any part thereof to be sold, conveyed, alienatedaliened, mortgaged, encumbered, pledged or otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer within the meaning of this Section 5.3 paragraph 9 shall be deemed to include (i) ----------- an installment sales agreement wherein Trustor Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Trustor Borrower leasing all or a substantial part of the 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, TrustorXxxxxxxx's right, title and interest in and to any Leases or any PaymentsRents; (iii) if Trustor Borrower or any general partner or managing member of Trustor Borrower 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 5049% of such corporation's stock shall be vested in a party or parties who are not now stockholders stockholders, except for any sale, conveyance or any change in the control transfer of such corporation's stock to an Affiliate provided Xxxxxx shall have received prior written notice of such transfer; (iv) if Trustor Borrower or any general partner or managing member of Trustor Borrower is a limited or general partnershippartnership or joint venture, joint venture the change, removal or resignation of a general partner or managing partner or the transfer of the partnership interest of any general partner or managing partner, except for any transfer of such partnership interest to an Affiliate, and excluding the removal or resignation of any non Affiliate or non managing general partner where the managing general partner shall remain following such removal or resignation, provided, in either case, Xxxxxx shall have received prior written notice of such transfer resignation or removal; (v) if Borrower or any Guarantor or any general partner or managing member of Borrower or any Guarantor is a limited liability company, the change, removal, removal or resignation or addition of a general partner, the managing partnermember of such company, or joint venturer the transfer or pledge of the membership interest of the managing member of such company or any profits or proceeds relating to such membership interest or the transfer of more than 49% in the aggregate of any ownership membership interests in such company whether in one transfer or a series of transfers, except for any transfer of membership interests to an Affiliate, provided Xxxxxx shall have received prior written notice of such transfer, resignation or removal; (vi) any transfer of any interest by the Manager (hereinafter defined) other than as permitted under paragraph 53; and (vii) any transfer of the beneficial interest of any general partner, managing partner or joint venturer or the transfer, assignment or pledge of Borrower in any ownership interest of any general partner, managing partner or joint venturer; (v) if Trustor is a limited partnership, the voluntary or involuntary sale, conveyance, transfer or pledge of any limited partnership interests or the creation or issuance of new limited partnership interests, by which an aggregate of more than 50% of such limited partnership interests are held by parties who are not currently limited partners; or (vi) if Trustor is a limited liability company, the voluntary or involuntary sale, conveyance or transfer of more than 50% of the members' interests. Notwithstanding anything herein trust holding legal title to the contrary, the following transfers of ownership interests in any Trustor entity shall be permitted transfers hereunder without Beneficiary's consent and shall not constitute a default hereunder: (i) any transfers into or out of a trust, family limited partnership, or other similar entity or device for tax or estate planning purposes; and (ii) any transfers resulting from the death of an individual, including without limitation, pursuant to a will, trust or intestate proceedingProperty.
(c) Beneficiary Notwithstanding anything to the contrary contained herein:
(i) Upon sixty (60) days prior written notice to Lender, the Borrower shall not have the limited right to transfer legal title to the Property to a Single Purpose Entity Transferee (hereinafter defined) provided (a) such Single Purpose Entity Transferee assumes all of the obligations of the Borrower under this Security Instrument, the Note and the Other Security Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement with Borrower and Lender in form and substance reasonably satisfactory to Lender (an "Assumption Agreement"), (b) the Single Purpose Entity Transferee shall have been newly formed exclusively and solely for the purpose of owning and operating the Property and shall have been engaged in no other business activities prior to the transfer of title to such Single Purpose Entity Transferee and must be required a "United States person" as defined by Section 7701(a)(30) of the United States Internal Revenue Code of 1986, as amended, (c) the Single Purpose Entity Transferee or the management agent it employs to demonstrate manage the Property shall have Adequate Real Estate Experience (hereinafter defined), (d) the Single Purpose Entity Transferee shall deliver to Lender evidence of the fulfillment of the requirements of subsection (b) above, (e) the Single Purpose Entity Transferee shall deliver any actual impairment and all organizational documentation requested by Lender, which documentation shall be reasonably satisfactory to Lender in all respects, and shall deliver an opinion of counsel of the Single Purpose Entity Transferee covering the Assumption Agreement in form and substance similar to the due execution, delivery and enforcement opinions delivered by counsel to Borrower in connection with the execution of this Security Instrument, (f) the Single Purpose Entity Transferee shall deliver any certificates and opinions of counsel, enter into agreements and covenants, or cause each of its security general partners (or any increased risk other principal thereof) to deliver certificates, enter into agreements and covenants, which certificates, agreements, opinions of default hereunder counsel and covenants shall be similar in order nature to declare those delivered, executed and made by Borrower or any general partner of Borrower in connection with the Indebtedness immediately due and payable upon Trustor's sale, conveyance, alienation, mortgage, encumbrance, pledge execution of this Security Instrument or transfer the Securitization (hereinafter defined) relating to the single purpose nature of the Property without Beneficiary's consent. This provision Single Purpose Entity Transferee or otherwise, and (g) Borrower shall apply deliver, at its sole cost and expense, an endorsement to every salethe existing title policy insuring the Security Instrument as modified by the Assumption Agreement as a valid first lien on the Property, conveyance, alienation, mortgage, encumbrance, pledge or transfer naming the Single Purpose Entity Transferee as owner of the Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer fee estate of the Property.
(d) Beneficiary's consent to one sale, conveyancewhich endorsement shall insure that, alienationas of the date of the recording of the Assumption Agreement, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Beneficiary's right to require such consent subject to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge additional exceptions or transfer of liens other than those contained in the Property made in contravention original title policy insuring the lien of this Section shall be null Security Instrument and void and of no force and effect.
(e) Trustor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements, title search costs and title insurance endorsement premiums) incurred by Beneficiary delivered in connection with the reviewexecution of this Security Instrument. Any and all reasonable costs incurred in connection with the above (including Xxxxxx's counsel's fees and disbursements and expenses and all recording fees, approval mortgage or intangible taxes, and documentation title insurance premiums), shall be paid by Xxxxxxxx. Lender shall respond to Xxxxxxxx's request to transfer legal title to the Property within thirty (30) days of any delivery of all of the information required by subsections (a)-(g) above. The failure of Lender to respond to such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer.
(f) Beneficiary's request shall not be deemed consent to the sale or transfer of the 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 Beneficiary;
(iii) the Transferee and its property manager (if any) shall have sufficient experience in the ownership and management of properties similar to the Property, and Beneficiary shall be provided with reasonable evidence thereof;
(iv) the Transferee shall have executed and delivered to Beneficiary an assumption agreement in form and substance acceptable to Beneficiary, evidencing such Transferee's agreement to abide and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Beneficiary; and
(v) Beneficiary shall have received the payment of all costs and expenses incurred by Beneficiary in connection with such assumption (including reasonable attorneys' fees and costs)transfer.
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