Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Section 2.3, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to the first anniversary of the Closing Date. From and after the first anniversary of the Closing Date, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied: (i) no Event of Default or monetary Default shall be continuing at the time of such conveyance or transfer; (ii) no Prohibited Change of Control shall occur as a result thereof; (iii) if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), Borrower shall have paid to Lender a transfer fee in an amount equal to 1.0% of the Principal Indebtedness at the time of such conveyance or transfer; (iv) if such conveyance or transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change of Control), Borrower shall have delivered to Lender with respect to such Person a new non-consolidation opinion that in Lender’s reasonable judgment satisfies the then-current criteria of the Rating Agencies (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Opinion shall not be unreasonably withheld, delayed or conditioned); (v) Borrower shall have paid the costs and expenses (if any) of the Rating Agencies and Servicers and reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer; and (vi) Lender shall have received 10 days advance written notice of such conveyance or transfer. (b) Notwithstanding anything to the contrary contained in this Section, the following transfers of indirect equity interests in Borrower shall be permitted at any time without the consent of Lender: (i) the issuance of additional shares in, or the transfer of existing shares of, Chesapeake Lodging Trust on any national stock exchange and (ii) the issuance of additional partnership interests, or the transfer of existing partnership interests, in Sponsor, so long as the same does not result in a Prohibited Change of Control.
Appears in 2 contracts
Samples: Loan Agreement (Chesapeake Lodging Trust), Loan Agreement (Chesapeake Lodging Trust)
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Section 2.3, no No direct or indirect equity interests in Borrower or Aspen International Co., Ltd., a Thai limited company, shall be conveyed or otherwise transferred to any Person prior under any circumstances, except in connection with the creation of one or more Mezzanine Loans subject to the first anniversary requirements of the Closing DateCooperation Agreement. From and after the first anniversary of the Closing DateExcept as set forth in Section 2.3, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied:satisfied (in which case such indirect equity interests may be conveyed or otherwise transferred):
(i) no Event of Default or monetary Default shall be continuing at the time of such conveyance or transfer or result from such conveyance or transfer;
(ii) no Prohibited Change of Control or Prohibited Pledge shall occur as a result thereof;
(iii) if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), Borrower shall have paid to Lender a transfer fee in an amount equal to 1.0% of the Principal Indebtedness at the time of such conveyance or transfer;
(iv) if such conveyance or transfer results in any Person acquiring more than 49that did not own 10% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change Borrower as of Control)the Closing Date acquiring more than 10% of the direct or indirect equity interest in Borrower, Borrower shall have delivered satisfied Lender’s customary “know your customer” requirements prior to such conveyance or transfer, including providing to Lender satisfactory credit, judgment, lien, litigation, bankruptcy, criminal and watch list searches regarding such Person (except that the foregoing shall not apply with respect to such Person any holders from time to time of public shares of stock that are traded or, as a new non-consolidation opinion that in Lender’s reasonable judgment satisfies result of a transfer or conveyance permitted hereunder, become traded on the then-current criteria of the Rating Agencies (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Opinion shall not be unreasonably withheld, delayed New York Stock Exchange or conditionedanother nationally recognized domestic stock exchange);
(viv) Borrower shall have paid the costs and expenses (if any) of the Rating Agencies and Servicers and reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer; and
(viv) Lender shall have received 10 days days’ advance written notice of such conveyance or transfer.
(b) Notwithstanding anything to the contrary contained in this Section, the following transfers of indirect equity interests in Borrower shall be permitted at any time without the consent of Lender: (i) the issuance of additional shares in, or the transfer of existing shares of, Chesapeake Lodging Trust on any national stock exchange and (ii) the issuance of additional partnership interests, or the transfer of existing partnership interests, in Sponsor, so long as the same does not result in a Prohibited Change of Control.
Appears in 1 contract
Samples: Loan Agreement (Aspen REIT, Inc.)
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Section 2.3, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to the first anniversary of the Closing Date. From and after the first anniversary of the Closing Date, no No direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied:
(i) no Event of Default or monetary Default shall be continuing at the time of such conveyance or transfer;
(ii) no Prohibited Change of Control or Prohibited Pledge shall occur as a result thereof;
(iii) if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder Equity holder that Controls Borrower), Borrower shall have paid to Lender a transfer fee in an amount equal to (Y) for the first such conveyance or transfer, $0.00, and (Z) for each conveyance or transfer thereafter, 1.0% of the Principal Indebtedness at the time of such conveyance or transfer;
(iv) so long as any particular Qualified Equity holder is in Control of Borrower, no more than forty-nine and nine-tenths percent (49.9%) of the direct or indirect ownership interests in Borrower or any Single Purpose Equity holder shall be transferred pursuant to this Section 2.3;
(v) if such conveyance or transfer results in any Person acquiring more than 4949.9% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change of Control), Borrower shall have delivered to Lender with respect to such Person a new non-consolidation opinion that in Lender’s 's reasonable judgment satisfies the then-current criteria of the Rating Agencies (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Opinion shall not be unreasonably withheld, delayed or conditioned)Agencies;
(vvi) Borrower shall have paid the costs and expenses (if any) of the Rating Agencies and Servicers and reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer; and
(vivii) Lender shall have received 10 ten (10) days advance written notice of such conveyance or transfer.
(b) Notwithstanding anything to the contrary contained in this Section, the following transfers of indirect equity interests in Borrower shall be permitted at any time without the consent of Lender: (i) the issuance of additional shares in, or the transfer of existing shares of, Chesapeake Lodging Trust on any national stock exchange and (ii) the issuance of additional partnership interests, or the transfer of existing partnership interests, in Sponsor, so long as the same does not result in a Prohibited Change of Control.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Section 2.3, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to the first anniversary of the Closing Date. From and after the first anniversary of the Closing Date, no No direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied:
: (i) no Event with respect to any transferee that, as a result of Default such transfer, will hold more than a 5% direct or monetary Default indirect interest in, or control, Borrower, Lender’s standard “know-your-customer” requirements shall have been satisfied (provided, that (x) from and after the date on which the initial Lender does not own any interest in the Loan, the foregoing 5% threshold shall be continuing at 10%, (y) transfers of stock on a nationally recognized public exchange shall not be subject to any “know-your-customer” requirements and (z) no such “know-your-customer” requirements shall apply to any Person who has previously satisfied Lender’s “know-your- customer” requirements in connection with the time of such conveyance or transfer;
Loan; (ii) no Prohibited Change of Control Control, Prohibited Equity Pledge or Prohibited Preferred Equity shall occur or exist as a result thereof;
; (iii) other than as provided in clause subsection (b) below, if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), then each of the following conditions shall be satisfied:
(1) no Event of Default or monetary Default shall be continuing, (2) Borrower shall have paid to Lender a transfer fee in an amount equal to 1.00.25% of the Principal Indebtedness at the time of such conveyance or transfer;
, and (3) a Person satisfactory to Lender in its sole discretion shall have assumed all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender (and upon such assumption by such Person, Sponsor and any other such guarantor shall be released on a forward-looking basis from such obligations, liabilities, guarantees and indemnities); (iv) if such conveyance or transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change of Control), where prior to such conveyance or transfer such Person did not own more than 49% of the direct or indirect equity interest in any Required SPE Borrower shall have delivered to Lender with respect to such Person a new non-consolidation opinion that in Lender’s reasonable judgment satisfies the then-then- current criteria of the Rating Agencies (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Opinion shall not be unreasonably withheld, delayed or conditioned);
; (v) Borrower shall have paid the costs and expenses (if any) of the Rating Agencies and the actual and documented costs and expenses of Servicers and reimbursed Lender for its reasonable actual and documented out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer; and
and (vi) Lender shall have received 10 days days’ advance written notice of such any conveyance or transfer.transfer requiring compliance with Section 2.3(a)(i) or for which a new non-consolidation opinion is required under clause (iv) above. 42
(b) Notwithstanding anything herein to the contrary contained in this Sectioncontrary, the following transfers transfer by each of Sponsor, TIAA and/or CPP of their direct or indirect equity interests in Borrower shall be permitted at any time without the consent of Lender: ’s consent, provided that (i) the issuance of additional shares in, or the such transfer of existing shares of, Chesapeake Lodging Trust on any national stock exchange and (ii) the issuance of additional partnership interests, or the transfer of existing partnership interests, in Sponsor, so long as the same does not result in a Prohibited Change of Control, (ii) if any conveyance or transfer by Sponsor, TIAA or CPP of their interests in Borrower results in Borrower ceasing to be Controlled by a Sponsor and/or TIAA and/or CPP, then Borrower shall have paid to Lender a transfer fee in an amount equal to 0.25% of the Principal Indebtedness as a condition to such conveyance or transfer (but, for the avoidance of doubt, so long as Borrower continues to be Controlled by Sponsor and/or TIAA and/or CPP, then no transfer fee shall be payable) and (iii) if after giving effect to any such transfer, any of Sponsor, TIAA or CPP would individually own less than 10% of the direct or indirect equity interests in Borrower, where prior to such transfer such Person owned 10% or more of the direct or indirect equity interests in Borrower, then Lender shall have received written notice of such transfer within 10 Business Days following such transfer. In addition, notwithstanding anything herein to the contrary, issuances and transfers of interests in Sponsor, TIAA, CPP, Parkway and Parkway Properties shall be permitted without the consent of Lender and without prior notice to Lender, so long as, after giving effect to any such issuance or transfer, Borrower is Controlled by one or more Qualified Equityholders. No fee shall be payable in connection with any issuance or transfer described in the immediately preceding sentence, so long as after giving effect thereto, Borrower is Controlled by Parkway, Sponsor, TIAA and/or CPP or a Qualified Equityholder(s) as to which a fee has previously been paid. Notwithstanding anything herein to the contrary, Lender hereby consents without any further action to the one-time transfer of interests in Borrower held by CPP from CPPIB US RE-A, Inc. to CPP Investment Board Real Estate Holdings, Inc. and to the one-time transfer of those same interests from CPP Investment Board Real Estate Holdings, Inc. to Canada Pension Plan Investment Board; provided, that, at the time of any such transfer, CPPIB US RE-A, Inc. and CPP Investment Board Real Estate Holdings, Inc. are wholly-owned, directly or indirectly, by Canada Pension Plan Investment Board. Notwithstanding anything to the contrary contained herein, TIAA and Silverpeak shall be permitted to jointly possess, directly or indirectly, the power to direct or cause the direction of the management and policies of Borrower, whether through the ability to exercise voting power, by contract or otherwise (and in such case, for purposes of this Agreement, TIAA shall be deemed to directly or indirectly, possess the power to direct or cause the direction of the management and policies of Borrower, whether through the ability to exercise voting power, by contract or otherwise).
(c) If any conveyance or transfer of interests in Borrower by Sponsor to TIAA or CPP results in Sponsor no longer owning a direct or indirect equity interest in Borrower, and a Replacement Guarantor assumes all obligations, liabilities, guarantees and indemnities of Sponsor under the Loan Documents first arising from and after the date of such assumption pursuant to documentation satisfactory to Lender (provided that a replacement guaranty in the form of the Guaranty and a replacement environmental indemnity in the form of the Environmental Indemnity shall be deemed satisfactory to Lender), then upon such assumption by 43
Appears in 1 contract
Samples: Loan Agreement (Parkway, Inc.)
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Section 2.3, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to the first anniversary of the Closing Date. From and after the first anniversary of the Closing Date, no No direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied:
(i) no Event of Default or monetary Default shall be continuing at the time of such conveyance or transfer;
(ii) no Prohibited Change of Control shall occur as a result thereof;
(iii) if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), (y) Borrower shall have paid to Lender a transfer fee in an amount equal to 1.0% of the Principal Indebtedness at the time of such conveyance or transfer;, provided such transfer fee shall not be due and owing to Lender to the extent Control is transferred to PAL DC Dallas; and (z) to the extent Control is transferred to PAL DC Dallas and such entity qualifies as a Qualified Equityholder, Xxxxxx Xxxxx and Xxxx Xxxxx, on a joint and several basis, shall enter the following: (a) an environmental indemnity agreement materially identical to the Environmental Indemnity Agreement entered by Borrower, Sponsor and Xxxxxx and Associates as of the Closing Date, (b) to the extent requested by Lender, a mortgage loan cooperation agreement materially identical to the Cooperation Agreement entered by Borrower, Sponsor and Xxxxxx and Associates as of the Closing Date and (c) a guaranty which is materially identical to the Guaranty entered by Sponsor and Xxxxxx and Associates as of the Closing Date which guarantees the liabilities of Borrower under Section 9.19(b), all of which shall be satisfactory to Lender in its sole discretion; provided, however, following such change in Control of Borrower and the entering of the agreements described in items (a) through (c) above, Xxxxxx Xxxxx and Xxxx Xxxxx shall only be liable for any Damages which relate to events first occurring after such change in Control.
(iv) if such conveyance or transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change of Control), Borrower shall have delivered to Lender with respect to such Person a new non-consolidation opinion that in Lender’s reasonable judgment satisfies the then-current criteria of the Rating Agencies (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Opinion shall not be unreasonably withheld, delayed or conditioned);
(v) Borrower shall have paid the costs and expenses (if any) of the Rating Agencies and Servicers and reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer; and
(vi) Lender shall have received 10 ten (10) days advance written notice of such conveyance or transfer.
(b) Notwithstanding anything to the contrary contained in this Section, the following transfers of indirect equity interests in Borrower shall be permitted at any time without the consent of Lender: (i) the issuance of additional shares in, or the transfer of existing shares of, Chesapeake Lodging Trust on any national stock exchange and (ii) the issuance of additional partnership interests, or the transfer of existing partnership interests, in Sponsor, so long as the same does not result in a Prohibited Change of Control.
Appears in 1 contract
Samples: Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Section 2.3, no No direct or indirect equity interests in Borrower or Operating Lessee shall be conveyed or otherwise transferred to any Person prior to the first anniversary of the Closing Date. From and after the first anniversary of the Closing Date, provided that no Event of Default is continuing, transfers (but not pledges, except as permitted under Section 7.1(f)) of direct or and indirect equity interests in Borrower and Operating Lessee shall be conveyed or otherwise transferred permitted upon 10 days advance written notice thereof to any PersonLender, unless the following conditions are satisfiedprovided that:
(i) no Event such transfer shall result in a Change of Default or monetary Default shall be continuing at the time of such conveyance or transferControl without Lender’s prior written consent;
(ii) no Prohibited Change of Control shall occur as a result thereof;
(iii) if condition to any such conveyance or transfer that results in Borrower ceasing to be Controlled by Sponsor (Sponsor, and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), Borrower shall have paid be conditioned upon payment to Lender of a transfer fee in an amount equal to 1.0% of the Principal Indebtedness at the time of such conveyance or transfer;
(iviii) if as a condition to any such conveyance or transfer that results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE Borrower, Operating Lessee or a Single-Purpose Equityholder (even if not constituting a Prohibited Change of Control), Borrower and Operating Lessee shall have delivered deliver to Lender with respect to such Person a new non-consolidation opinion that in Lender’s reasonable judgment satisfies satisfactory to (A) prior to the then-current criteria occurrence of any Securitization of the Rating Agencies Loan, Lender (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Opinion shall not to be unreasonably withheld), delayed and (B) at any time following any Securitization or conditioned);series of Securitizations of the Loan, each of the Rating Agencies rating such Securitization or Securitizations; and
(viv) Borrower shall have paid the reimbursed Lender for its reasonable out-of-pocket costs and expenses actually incurred in connection with any such transfer. Notwithstanding clause (if anyii) of above, in connection with the Rating Agencies first transfer in accordance with this Section 2.3, Borrower shall have paid to Lender a nonrefundable transfer fee an amount equal to $30,000, and Servicers and Borrower shall have reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer; and
(vi) Lender shall have received 10 days advance written notice of such conveyance or transferassumption.
(b) Notwithstanding anything to the contrary contained in this SectionSection 2.3(a) above, the following transactions shall not be deemed prohibited transfers of indirect equity interests in Borrower under this Agreement and shall be permitted at any time without not require the consent of Lender: :
(i) the issuance of additional shares in, or the transfer of existing shares of, Chesapeake Lodging Trust of Sponsor on any national stock public exchange and or the issuance of new units or transfers of existing units in Pebblebrook Hotel, L.P. (the “Operating Partnership”), provided that it shall continue to be Controlled by Sponsor; and
(ii) the issuance any merger of additional partnership interests, Sponsor or the transfer Operating Partnership or a sale of existing partnership interestsall or substantially all of the assets of Sponsor or the Operating Partnership, in Sponsorprovided that the new direct or indirect owner of Borrower resulting from such transaction assumes all obligations of Sponsor under the Loan Documents, so long as the same does not result in a Prohibited Change of Controland shall continue to Control both Borrower and Operating Lessee.
Appears in 1 contract
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Subject to Section 2.3, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to the first anniversary of the Closing Date. From and after the first anniversary of the Closing Date2.3(b), no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied:
(i) no Event of Default or monetary Default shall be continuing at the time of such conveyance or transfer;
(ii) no Prohibited Change of Control or Prohibited Pledge shall occur as a result thereof;
(iii) if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), Borrower shall have paid to Lender a transfer fee in an amount equal to (A) 0.5% of the Principal Indebtedness for the first permitted change of Control, and (B) 1.0% of the Principal Indebtedness for each subsequent change of Control at the time of such conveyance or transfer;
(iv) if such conveyance or transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change of Control), Borrower shall have delivered to Lender with respect to such Person a new non-consolidation opinion that in Lender’s 's reasonable judgment satisfies the then-current then‑current criteria of the Rating Agencies (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s 's approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Non-consolidation Opinion shall not be unreasonably withheld, delayed or conditioned);
(v) Borrower shall have paid the costs and expenses (if any) of the Rating Agencies and Servicers and reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer; and
(vi) Lender shall have received 10 ten (10) days advance written notice of such any conveyance or transfertransfer of 10% or more of the direct or indirect equity interests in, or Control of, Borrower or for which a new non-consolidation opinion is required under clause (iv) above.
(b) Notwithstanding anything In addition to the contrary contained in this Sectiontransfers permitted under subsection (a) above, the following direct and indirect transfers of indirect equity (a) stock or other interests in Borrower Sponsor (including without limitation any transfers resulting from a privately negotiated sale, a merger, consolidation, or tender offer), and/or (b) shares in any direct or indirect parent of Sponsor that is listed on the New York Stock Exchange or any other nationally recognized exchange, shall be permitted at any time all times without the consent of, or any 49125-481/Block 21 (TX) notice to, Lender, and without satisfaction of Lender: any other condition precedents (including the obligations to pay any fee for such transfer), so long as (i) Sponsor or any Qualified Equityholder that Controls Borrower at the issuance time of additional shares in, or the such transfer of existing shares of, Chesapeake Lodging Trust on any national stock exchange continues to Control Borrower after such transfer and (ii) Borrower shall deliver evidence of any such transfer that is a reportable event under applicable Securities Exchange Commission rules within ten (10) Business Days of Lender's request to the issuance of additional partnership interests, or the transfer of existing partnership interests, in Sponsor, so long as the same does not result in a Prohibited Change of Controlextent such information is available to Borrower.
Appears in 1 contract
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Section 2.3, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to the first anniversary of the Closing Date. From and after the first anniversary of the Closing Date, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied:
(i) no Event of Default or monetary Default shall be continuing at the time of such conveyance or transfer;
(ii) no Prohibited Change of Control shall occur as a result thereof;
(iii) if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), Borrower shall have paid to Lender a transfer fee in an amount equal to 1.0% of the Principal Indebtedness at the time of such conveyance or transfer;
(iv) if such conveyance or transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change of Control), Borrower shall have delivered to Lender with respect to such Person a new non-consolidation opinion that in Lender’s reasonable judgment satisfies the then-current criteria of the Rating Agencies (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Opinion shall not be unreasonably withheld, delayed or conditioned);
(v) Borrower shall have paid the costs and expenses (if any) of the Rating Agencies and Servicers and reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer; and
(vi) Lender shall have received 10 days advance written notice of such conveyance or transfer.
(b) Notwithstanding anything to the contrary contained in this Section, the following transfers of indirect equity interests in Borrower shall be permitted at any time without the consent of Lender: (i) the issuance of additional shares inshares, or the transfer of existing shares of, Chesapeake Lodging Trust on any national stock exchange securities exchange, of Chesapeake Lodging Trust, and (ii) the issuance of additional partnership interests, or the transfer of existing partnership interests, in Sponsor, so long as the same does not result in a Prohibited Change of Control.. Article III
Appears in 1 contract
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Subject to Section 2.3, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to the first anniversary of the Closing Date. From and after the first anniversary of the Closing Date2.3(b), no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied:
(i) no Event of Default or monetary Default shall be continuing at the time of such conveyance or transfer;
(ii) no Prohibited Change of Control or Prohibited Pledge shall occur as a result thereof;
(iii) if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), Borrower shall have paid to Lender a transfer fee in an amount equal to (A) 0.5% of the Principal Indebtedness for the first permitted change of Control, and (B) 1.0% of the Principal Indebtedness for each subsequent change of Control at the time of such conveyance or transfer;
(iv) if such conveyance or transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change of Control), Borrower shall have delivered to Lender with respect to such Person a new non-consolidation opinion that in Lender’s 's reasonable judgment satisfies the then-current then‑current criteria of the Rating Agencies (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s 's approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Non-consolidation Opinion shall not be unreasonably withheld, delayed or conditioned);
(v) Borrower shall have paid the costs and expenses (if any) of the Rating Agencies and Servicers and reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer; and
(vi) Lender shall have received 10 ten (10) days advance written notice of such any conveyance or transfertransfer of 10% or more of the direct or indirect equity interests in, or Control of, Borrower or for which a new non-consolidation opinion is required under clause (iv) above.
(b) Notwithstanding anything In addition to the contrary contained in this Sectiontransfers permitted under subsection (a) above, the following direct and indirect transfers of indirect equity (a) stock or other interests in Borrower Sponsor (including without limitation any transfers resulting from a privately negotiated sale, a merger, consolidation, or tender offer), and/or (b) shares in any direct or indirect parent of Sponsor that is listed on the New York Stock Exchange or any other nationally recognized exchange, shall be permitted at any time all times without the consent of, or any notice to, Lender, and without satisfaction of Lender: any other condition precedents (including the obligations to pay any fee for such transfer), so long as (i) Sponsor or any Qualified Equityholder that Controls Borrower at the issuance time of additional shares in, or the such transfer of existing shares of, Chesapeake Lodging Trust on any national stock exchange continues to Control Borrower after such transfer and (ii) Borrower shall deliver evidence of any such transfer that is a reportable event under applicable Securities Exchange Commission rules within ten (10) Business Days of Lender's request to the issuance of additional partnership interests, or the transfer of existing partnership interests, in Sponsor, so long as the same does not result in a Prohibited Change of Controlextent such information is available to Borrower.
Appears in 1 contract
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Section 2.3, no No direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to without Lender’s approval (in its sole discretion), except in connection with a foreclosure by Mezzanine Lender under the first anniversary of Mezzanine Loan or any Additional Mezzanine Lender under the Closing Date. From and after the first anniversary of the Closing DateAdditional Mezzanine Loan Documents, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied:
(i) no Event of Default or monetary Default shall be continuing at the time of such conveyance or transfer;
(ii) no Prohibited Change of Control or Prohibited Pledge shall occur as a result thereof;
(iii) if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), Borrower shall have paid to Lender a transfer fee in an amount equal to 1.0% of the Principal Indebtedness at the time of such conveyance or transfer;
(iv) if such conveyance or transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change of Control), Borrower shall have delivered to Lender with respect to such Person a new non-consolidation opinion that in Lender’s reasonable judgment satisfies the then-current criteria of the Rating Agencies (and, or modification to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is Nonconsolidation Opinion in substantially the form of the Nonconsolidation Opinion shall or otherwise approved by Lender, such approval not to be unreasonably withheld, delayed or conditioned);
(viv) Borrower shall have paid the reasonable out-of-pocket costs and expenses (if any) of the Rating Agencies and Servicers and reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer, provided that no fee shall be payable to Lender or Servicer or Rating Agencies with respect to such transfer; and
(viv) Lender shall have received 10 days advance written notice of such conveyance or transfer; and
(vi) if, as a result of such conveyance or transfer, there is a new guarantor, such guarantor (a) is a Qualified Equityholder and (b) shall execute and deliver a new recourse guaranty and environmental indemnity in form and substance substantially similar to that delivered to Lender at closing of the Loan.
(b) Notwithstanding anything to the contrary contained in this Sectionforegoing, the following transfers of indirect equity interests in Borrower shall be permitted at without Lender’s consent or the payment of any time without the consent fees or (except as noted below) satisfaction of Lender: any other condition:
(i) the offer, sale, listing, transfer or issuance by NY REIT of additional shares in(i) securities that are listed on the New York Stock Exchange, the NASDAQ Global Select Market or the transfer of existing shares of, Chesapeake Lodging Trust on any national another nationally recognized stock exchange and or (ii) securities that are sold in the issuance ordinary course of additional partnership interestsbusiness and in accordance with all applicable legal requirements to investors in a manner consistent with previous offerings and sales conducted by NY REIT or its Affiliates to date; or
(ii) subject to satisfaction of the conditions in Sections 2.2(a)(iii), 2.2(a)(iv) and 2.2(a)(vi), the merger or acquisition of all, or substantially all, of the transfer of existing partnership interests, direct or indirect interests in Sponsor, so long as the same does not result in a Prohibited Change of ControlNYROP by any Person provided that at all times NYROP is Controlled by NY REIT or by one or more Qualified Equityholders.
Appears in 1 contract
Samples: Loan Agreement (New York REIT, Inc.)
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Section 2.3, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to the first anniversary of the Closing Date. From and after the first anniversary of the Closing Date, no No direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied:
(i) no Event with respect to any transferee that, as a result of Default such transfer, will hold more than a 5% direct or monetary Default indirect interest in, or control, Borrower, Lender’s standard “know-your-customer” requirements shall have been satisfied (provided, that (x) from and after the date on which the initial Lender does not own any interest in the Loan, the foregoing 5% threshold shall be continuing at 10%, (y) transfers of stock on a nationally recognized public exchange shall not be subject to any “know-your-customer” requirements and (z) no such “know-your-customer” requirements shall apply to any Person who has previously satisfied Lender’s “know-your-customer” requirements in connection with the time of such conveyance or transferLoan;
(ii) no Prohibited Change of Control Control, Prohibited Equity Pledge or Prohibited Preferred Equity shall occur or exist as a result thereof;
(iii) other than as provided in clause subsection (b) below, if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), then each of the following conditions shall be satisfied: (1) no Event of Default or monetary Default shall be continuing, (2) Borrower shall have paid to Lender a transfer fee in an amount equal to 1.00.25% of the Principal Indebtedness at the time of such conveyance or transfer, and (3) a Person satisfactory to Lender in its sole discretion shall have assumed all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender (and upon such assumption by such Person, Sponsor and any other such guarantor shall be released on a forward-looking basis from such obligations, liabilities, guarantees and indemnities);
(iv) if such conveyance or transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change of Control), where prior to such conveyance or transfer such Person did not own more than 49% of the direct or indirect equity interest in any Required SPE Borrower shall have delivered to Lender with respect to such Person a new non-consolidation opinion that in Lender’s reasonable judgment satisfies the then-current criteria of the Rating Agencies (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Opinion shall not be unreasonably withheld, delayed or conditioned);
(v) Borrower shall have paid the costs and expenses (if any) of the Rating Agencies and the actual and documented costs and expenses of Servicers and reimbursed Lender for its reasonable actual and documented out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer; and
(vi) Lender shall have received 10 days days’ advance written notice of such any conveyance or transfertransfer requiring compliance with Section 2.3(a)(i) or for which a new non-consolidation opinion is required under clause (iv) above.
(b) Notwithstanding anything herein to the contrary contained in this Sectioncontrary, the following transfers transfer by each of Sponsor, TIAA and/or CPP of their direct or indirect equity interests in Borrower shall be permitted at any time without the consent of Lender: ’s consent, provided that (i) the issuance of additional shares in, or the such transfer of existing shares of, Chesapeake Lodging Trust on any national stock exchange and (ii) the issuance of additional partnership interests, or the transfer of existing partnership interests, in Sponsor, so long as the same does not result in a Prohibited Change of Control, (ii) if any conveyance or transfer by Sponsor, TIAA or CPP of their interests in Borrower results in Borrower ceasing to be Controlled by a Sponsor and/or TIAA and/or CPP, then Borrower shall have paid to Lender a transfer fee in an amount equal to 0.25% of the Principal Indebtedness as a condition to such conveyance or transfer (but, for the avoidance of doubt, so long as Borrower continues to be Controlled by Sponsor and/or TIAA and/or CPP, then no transfer fee shall be payable) and (iii) if after giving effect to any such transfer, any of Sponsor, TIAA or CPP would individually own less than 10% of the direct or indirect equity interests in Borrower, where prior to such transfer such Person owned 10% or more of the direct or indirect equity interests in Borrower, then Lender shall have received written notice of such transfer within 10 Business Days following such transfer. In addition, notwithstanding anything herein to the contrary, issuances and transfers of interests in Sponsor, TIAA, CPP, Parkway and Parkway Properties shall be permitted without the consent of Lender and without prior notice to Lender, so long as, after giving effect to any such issuance or transfer, Borrower is Controlled by one or more Qualified Equityholders. No fee shall be payable in connection with any issuance or transfer described in the immediately preceding sentence, so long as after giving effect thereto, Borrower is Controlled by Parkway, Sponsor, TIAA and/or CPP or a Qualified Equityholder(s) as to which a fee has previously been paid. Notwithstanding anything herein to the contrary, Lender hereby consents without any further action to the one-time transfer of interests in Borrower held by CPP from CPPIB US RE-A, Inc. to CPP Investment Board Real Estate Holdings, Inc. and to the one-time transfer of those same interests from CPP Investment Board Real Estate Holdings, Inc. to Canada Pension Plan Investment Board; provided, that, at the time of any such transfer, CPPIB US RE-A, Inc. and CPP Investment Board Real Estate Holdings, Inc. are wholly-owned, directly or indirectly, by Canada Pension Plan Investment Board. Notwithstanding anything to the contrary contained herein, TIAA and Silverpeak shall be permitted to jointly possess, directly or indirectly, the power to direct or cause the direction of the management and policies of Borrower, whether through the ability to exercise voting power, by contract or otherwise (and in such case, for purposes of this Agreement, TIAA shall be deemed to directly or indirectly, possess the power to direct or cause the direction of the management and policies of Borrower, whether through the ability to exercise voting power, by contract or otherwise).
(c) If any conveyance or transfer of interests in Borrower by Sponsor to TIAA or CPP results in Sponsor no longer owning a direct or indirect equity interest in Borrower, and a Replacement Guarantor assumes all obligations, liabilities, guarantees and indemnities of Sponsor under the Loan Documents first arising from and after the date of such assumption pursuant to documentation satisfactory to Lender (provided that a replacement guaranty in the form of the Guaranty and a replacement environmental indemnity in the form of the Environmental Indemnity shall be deemed satisfactory to Lender), then upon such assumption by such Replacement Guarantor, Sponsor shall be released on from all obligations, liabilities, guarantees and indemnities first arising from and after the date of such assumption by a Replacement Guarantor.
Appears in 1 contract
Samples: Loan Agreement (Parkway, Inc.)
Transfers of Equity Interests in Borrower. (a) Except as set forth in clause (b) of this Section 2.3, no No direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to the first anniversary of the Closing Date. From and after the first anniversary of the Closing Date, provided that no Event of Default is continuing, transfers (but not pledges, except as permitted under Section 7.1(f)) of direct or and indirect equity interests in Borrower shall be conveyed or otherwise transferred permitted upon 10 days advance written notice thereof to any PersonLender, unless the following conditions are satisfiedprovided that:
(i) no Event such transfer shall result in a Change of Default or monetary Default shall be continuing at the time of such conveyance or transferControl;
(ii) no Prohibited Change of Control shall occur as a result thereof;
(iii) if condition to any such conveyance or transfer that results in Borrower ceasing to be Controlled by Sponsor (Sponsor, and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), Borrower shall have paid be conditioned upon payment to Lender of a transfer fee in an amount equal to 1.0% of the Principal Indebtedness at the time of such conveyance or transfer;
(iviii) if as a condition to any such conveyance or transfer that results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE Borrower or a Single-Purpose Equityholder (even if not constituting a Prohibited Change of Control), Borrower shall have delivered deliver to Lender with respect to such Person a new non-consolidation opinion that in Lender’s reasonable judgment satisfies satisfactory to (A) prior to the then-current criteria occurrence of any Securitization of the Rating Agencies Loan, Lender (and, to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is in substantially the form of the Nonconsolidation Opinion shall not to be unreasonably withheld), delayed and (B) at any time following any Securitization or conditioned);series of Securitizations of the Loan, each of the Rating Agencies rating such Securitization or Securitizations; and
(viv) Borrower shall have paid the costs and expenses (if any) of the Rating Agencies and Servicers and reimbursed Lender for its reasonable out-of-pocket costs and expenses actually incurred in connection with any such conveyance or transfer; and
(vi) Lender shall have received 10 days advance written notice of such conveyance or transfer.
(b) Notwithstanding anything to the contrary contained in this SectionSection 2.3(a) above, the following transactions shall not be deemed prohibited transfers of indirect equity interests in Borrower under this Agreement and shall be permitted at any time without not require the consent of Lender: :
(i) the issuance of additional shares in, or the transfer of existing shares of, Chesapeake Lodging Trust of Sponsor on any national stock public exchange and or the issuance of new units or transfers of existing units in Pebblebrook Hotel, L.P. (the “Operating Partnership”), provided that it shall continue to be Controlled by Sponsor; and
(ii) the issuance any merger of additional partnership interests, Sponsor or the transfer Operating Partnership or a sale of existing partnership interestsall or substantially all of the assets of Sponsor or the Operating Partnership, in Sponsor, so long as provided that the same does not result in a Prohibited Change new direct or indirect owner of ControlBorrower resulting from such transaction assumes all obligations of Sponsor under the Loan Documents.
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Transfers of Equity Interests in Borrower. (a) Except as set forth No direct equity interests in clause (b) of this Section 2.3, no Mortgage Borrower shall be conveyed or otherwise transferred to any Person under any circumstances. No direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person prior to without Lender’s approval (in its sole discretion), except in connection with a foreclosure by any Additional Mezzanine Lender under the first anniversary of the Closing Date. From and after the first anniversary of the Closing DateAdditional Mezzanine Loan Documents, no direct or indirect equity interests in Borrower shall be conveyed or otherwise transferred to any Person, unless the following conditions are satisfied:
(i) no Event of Default or monetary Default shall be continuing at the time of such conveyance or transfer;
(ii) no Prohibited Change of Control or Prohibited Pledge shall occur as a result thereof;
(iii) if any such conveyance or transfer results in Borrower ceasing to be Controlled by Sponsor (and in connection with each subsequent conveyance or transfer that again changes the identity of the Qualified Equityholder that Controls Borrower), Borrower shall have paid to Lender a transfer fee in an amount equal to 1.0% of the Principal Indebtedness at the time of such conveyance or transfer;
(iv) if such conveyance or transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in any Required SPE (even if not constituting a Prohibited Change of Control), Borrower shall have delivered to Lender with respect to such Person a new non-consolidation opinion that in Lender’s reasonable judgment satisfies the then-current criteria of the Rating Agencies (and, or modification to the extent that the criteria of the Rating Agencies has not changed in any material respect since the Closing Date, Lender’s approval of any such non-consolidation opinion that is Nonconsolidation Opinion in substantially the form of the Nonconsolidation Opinion shall or otherwise approved by Lender, such approval not to be unreasonably withheld, delayed or conditioned);
(viv) Borrower shall have paid the reasonable out-of-pocket costs and expenses (if any) of the Rating Agencies and Servicers and reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with any such conveyance or transfer, provided that no fee shall be payable to Lender or Servicer or Rating Agencies with respect to such transfer; and
(viv) Lender shall have received 10 days advance written notice of such conveyance or transfer; and
(vi) if, as a result of such conveyance or transfer, there is a new guarantor, such guarantor (a) is a Qualified Equityholder and (b) shall execute and deliver a new recourse guaranty and environmental indemnity in form and substance substantially similar to that delivered to Lender at closing of the Loan.
(b) Notwithstanding anything to the contrary contained in this Sectionforegoing, the following transfers of indirect equity interests in Borrower shall be permitted at without Lender’s consent or the payment of any time without the consent fees or (except as noted below) satisfaction of Lender: any other condition:
(i) the offer, sale, listing, transfer or issuance by NY REIT of additional shares in(i) securities that are listed on the New York Stock Exchange, the NASDAQ Global Select Market or the transfer of existing shares of, Chesapeake Lodging Trust on any national another nationally recognized stock exchange and or (ii) securities that are sold in the issuance ordinary course of additional partnership interestsbusiness and in accordance with all applicable legal requirements to investors in a manner consistent with previous offerings and sales conducted by NY REIT or its Affiliates to date; or
(ii) subject to satisfaction of the conditions in Sections 2.2(a)(iii), 2.2(a)(iv) and 2.2(a)(vi), the merger or acquisition of all, or substantially all, of the transfer of existing partnership interests, direct or indirect interests in Sponsor, so long as the same does not result in a Prohibited Change of ControlNYROP by any Person provided that at all times NYROP is Controlled by NY REIT or by one or more Qualified Equityholders.
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