Transfers. Shareholder shall not, (i) directly or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Id Systems Inc), Voting and Support Agreement (Id Systems Inc), Voting and Support Agreement (Pointer Telocation LTD)
Transfers. Shareholder shall notUnless such action is permitted by the provisions of this Section 5.2.13, Borrower agrees that it will not (i) directly or indirectly offer, sell (including short sales), transfer, tendersell, assign, exchangeconvey, pledge, encumber transfer or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of its interests in the Company Shares, Property or any interest therein, to any Personpart thereof, (ii) enter into permit any voting arrangementowner, directly or indirectly, of an ownership interest in the Property, to transfer such interest, whether by proxytransfer of stock or other interest in Borrower or any entity, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, incur Indebtedness (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect Indebtedness permitted pursuant to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Property or any part thereof, (v) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise dispose of any direct or indirect ownership interest in Borrower, or permit any owner of an interest in Borrower to do the same, or (vi) file a declaration of condominium with respect to the Property (any of the foregoing transactions, a “Transfer”). For purposes hereof, a “Transfer” shall not include (A) any issuance, sale or transfer of interests in Sole Member or any successor entity resulting from any merger permitted hereunder, (B) a transfer by devise or descent or by operation of law upon the death of a member or partner of Borrower, or (C) the merger of the Sole Member with any of the following entities: Inland Retail Real Estate Trust, Inc., a Maryland corporation, Inland Real Estate Corporation, a Maryland corporation, Inland Real Estate Investment Corporation, a Delaware corporation, Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, any other real estate investment trust sponsored by Inland Real Estate Investment Corporation, or any other entity composed entirely of any of the foregoing by merger; provided, however, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer and, in connection with a merger hereinabove described, the net worth of the entity surviving the merger shall not be less than the net worth of the Sole Member immediately prior to such merger and the entity surviving the merger shall be publicly traded.
(a) On and after the Closing Date, Lender shall not withhold its consent to a Transfer of the Property, as part of a single transaction, provided that the following conditions are satisfied:
(1) the transferee of the Property shall be a Special Purpose Entity (the “Transferee”) which at the time of such transfer will be in compliance with the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof and which shall have assumed in writing (subject to the terms of Section 9.4 hereof) and agreed to comply with all the terms, covenants and conditions set forth in this Loan Agreement and the other Loan Documents, expressly including the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof;
(2) if requested by Lender, Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal or qualification of the then current rating of any securities issued pursuant to such Securitization;
(3) if Manager does not act as manager of the transferred Property then the manager of the Property must be a Qualifying Manager;
(4) no Event of Default shall have occurred and be continuing;
(5) if required or requested by any of the Rating Agencies, Borrower shall have caused counsel to render a substantive non-consolidation opinion which in each case may be relied upon by the holder of the Note, the Ratings Agencies and their respective counsel, agents and representatives with respect to the proposed transaction, including the Transferee, which opinion shall be acceptable to Lender in its reasonable discretion;
(6) Borrower shall have paid (A) an assumption fee equal to one percent (1.0%) of the then outstanding principal balance of the Loan, and (B) the reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer; provided, however,
(A) no assumption fee shall be required for a Transfer of the Property to a Transferee acceptable to Lender in connection with a joint venture between Sole Member and an entity acceptable to Lender, provided Sole Member or an Affiliate wholly-owned (directly or indirectly) by Sole Member owns at least ten percent (10%) of the ownership interests in such Transferee and for which Sole Member or an Affiliate wholly owned (directly or indirectly) by Sole Member, is the managing entity and otherwise maintains operational and managerial control of such Transferee, and Inland American Real Estate Trust, Inc. remains as Indemnitor, provided that, Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and
Appears in 3 contracts
Samples: Loan Agreement (Inland American Real Estate Trust, Inc.), Loan Agreement (Inland American Real Estate Trust, Inc.), Loan Agreement (Inland American Real Estate Trust, Inc.)
Transfers. Shareholder Stockholder shall not, (i) directly or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder Stockholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs shall occur (including, but not limited to, a sale by ShareholderStockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder Stockholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder Stockholder shall have complied with the terms of this Agreement.
Appears in 3 contracts
Samples: Investment and Transaction Agreement (Id Systems Inc), Voting and Support Agreement (Emancipation Management LLC), Voting and Support Agreement (Id Systems Inc)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, Key Principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership and control of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectively, “Transfer”), the Property or enter into any contract, option, derivative, hedging, swap, forward part thereof or other agreement, understanding any legal or other arrangement beneficial interest therein or any interest of Borrower in the Loan (including any profit sharing arrangementof its rights, duties and obligations under this Agreement and the other Loan Documents) or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with respect to a Transfer of, any the provisions of the Company SharesSection 5.1.20 and (B) Permitted Transfers, or any interest therein, to any Person, (iiiii) enter into any voting arrangementplan of division, whether by proxyor divide, voting establish a protected series, create a new registered series, or convert to another form of incorporated or unincorporated business or other entity or provide in its operating agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take for any of the foregoing actions. Shareholder without Lender's prior written consent.
(c) A Transfer shall include (i) an installment sales agreement wherein Borrower agrees that to sell the Property or any Transfer part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of Subject Shares not permitted hereby shall be null 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, Borrower’s right, title and void ab initio interest in and that to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such prohibited Transfer may and should be enjoined. If corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any involuntary Transfer merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the Company Shares occurs membership interest of a managing member (includingor if no managing member, but not limited to, a sale by Shareholder’s trustee in any bankruptcymember) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non managing membership interests; (vi) if a sale to Restricted Party is a purchaser at trust or nominee trust, any creditor’s merger, consolidation or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees Sale or Pledge of the initial transfereelegal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) shall take and hold such Company Shares subject to all the removal or the resignation of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares managing agent (including an Affiliated Manager) other than in strict compliance accordance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementSection 5.1.22 hereof.
Appears in 3 contracts
Samples: Commercial Loan Agreement (Red Oak Capital Fund V, LLC), Commercial Loan Agreement (Red Oak Capital Fund V, LLC), Commercial Loan Agreement (Red Oak Capital Fund V, LLC)
Transfers. Shareholder (a) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10 and Section 2.5 hereof, Borrower shall not, and shall not permit any Person owning a direct or indirect interest in Borrower or Operating Lessee to do any of the following (collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Property or any direct or indirect interest therein, to any Person, or (ii) enter permit a Sale or Pledge of a direct or indirect interest in Borrower or Operating Lessee, other than (A) the Operating Lease, (B) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20, (C) the Room License Agreements, and (D) Permitted Transfers.
(b) Notwithstanding the foregoing, a sale or conveyance by Borrower of the Property subject to the lien of the Mortgage (but not any other mortgage, lien or other encumbrance (other than the Permitted Encumbrances and Room License Agreements hereafter entered into any voting arrangementin the ordinary course of operating the Property)) is permitted provided that the following conditions are satisfied:
(i) no Event of Default shall have occurred and be continuing and such sale or conveyance shall not result in an Event of Default;
(ii) the Person to whom the Property is sold or conveyed (the “Transferee”) satisfies the requirements of a Special Purpose Entity and the organizational documents of the Transferee are reasonably acceptable to Lender and, whether after a Securitization, to the Rating Agencies;
(iii) if such sale or conveyance occurs prior to a Securitization, Lender shall have consented to such sale or conveyance, which consent shall not be unreasonably withheld;
(iv) Lender has received an Additional Insolvency Opinion which may be relied upon by proxyLender, voting agreement or otherwisethe Rating Agencies and their respective successors and assigns, with respect to any the Transferee and its applicable affiliates, which Additional Insolvency Opinion shall be reasonably acceptable to Lender or, after a Securitization, the Rating Agencies;
(v) the Transferee shall execute an assumption, effective as of the Subject Sharesdate of transfer, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any obligations of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall Borrower thereafter arising or to be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights performed under this Agreement, which the Mortgage and the other Loan Documents, subject, however, to the provisions of Section 9.3 hereof and upon such assumption, Borrower shall continue in full force be released from all liabilities and obligations under the Loan Documents;
(vi) following such sale or conveyance the property manager of the Property must be a Qualified Manager; and
(vii) the Transferee pays to Lender a loan assumption fee of 1% of the then outstanding principal amount of the Loan;
(viii) if, after giving effect for the Term. The Company agrees that if Shareholder attempts to such Transfer, vote Sponsor does not own at least 51% of the equity interests in Borrower and control Borrower, the Rating Agencies have confirmed that such sale or provide conveyance, in and of itself, will not result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Securities; and
(ix) Borrower pays Lender’s reasonable costs and expenses (including any other Person fees due to the Rating Agencies) in connection with the authority sale or conveyance.
(c) A Transfer (but not a pledge, hypothecation, creation of a security interest in or other encumbrance) of any direct or indirect interests in Borrower is permitted provided that the following conditions are satisfied:
(i) if such sale or conveyance occurs prior to vote any a Securitization, Lender shall have consented to such sale or conveyance, which consent shall not be unreasonably withheld; provided however, Lender’s consent shall not be required if, after giving effect to the Transfer, Sponsor owns not less than 51% of the Company Shares other than equity interests in strict compliance with this AgreementBorrower and controls, the Company shall not directly or indirectly, Borrower;
(xii) permit if as a result of any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any series of Transfers more than 49% of the Company Shares direct or permit any book entries for any indirect ownership interests in Borrower shall be transferred to a Person individually or together with its Affiliates not owning at least 49% of the direct or indirect ownership interests in Borrower immediately prior to such Transfer (or as reflected in the most recent Additional Insolvency Opinion delivered to Lender), Borrower shall deliver to Lender an Additional Insolvency Opinion which may be relied upon by Lender, the Rating Agencies and their respective counsel, successors and assigns, with respect to any Company Shares the proposed transfer or sale, which Additional Insolvency Opinion shall be reasonably acceptable to Lender and, after a Securitization, the Rating Agencies;
(iii) at the time of such Transfer no Event of Default has occurred and is continuing;
(iv) following such Transfer the property manager of the Property must be a Qualified Manager;
(v) if, after giving effect to such Transfer, Sponsor does not own at least 51% of the equity interests in Borrower and control Borrower, the Rating Agencies shall have confirmed that are in uncertificated form or (z) record such voteTransfer, in each caseand of itself, unless will not result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Securities
(vi) Borrower shall pay, or cause to be paid, to Lender its reasonable out-of-pocket expenses (including any fees due to the Rating Agencies) in connection with such sale or conveyance; and
(vii) in connection with any Transfer as a result of which Sponsor will not own at least 51% of the equity interests in Borrower and until Shareholder control, directly or indirectly, Borrower, Borrower shall give or cause to be given written notice to Lender of the proposed Transfer not later than fifteen (15) days prior thereto, which notice shall set forth the name of the Person to which the interest in Borrower is to be transferred, identify the proposed transferee and set forth the date the Transfer is expected to be effective and (A) Lender shall have complied with consented to such Transfer and (B) Borrower shall pay to Lender a loan assumption fee of 1% of the terms then outstanding principal amount of this Agreementthe Loan.
Appears in 3 contracts
Samples: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, Key Principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership and control of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or any interest of Borrower in the Loan (including any of its rights, duties and obligations under this Agreement and the other Loan Documents) or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20 and (B) Permitted Transfers, or (iii) enter into any plan of division, or divide, establish a protected series, create a new registered series, or convert to another form of incorporated or unincorporated business or other entity or provide in its operating agreement for any of the foregoing without Lender's prior written consent.
(c) A Transfer shall include (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than ten percent (10%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the Change of Control in a Restricted Party or cause any Key Principal to no longer be a Key Principal of Borrower, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. Borrower shall pay any and all reasonable out-of-pocket costs and expenses incurred in connection with such Transfers (including Lender’s counsel fees and disbursements and any fees and expenses of the Rating Agencies).
(e) Without limiting Lender’s discretion to approve or disapprove any request for a waiver of the prohibition against Transfers, Lender specifically reserves the right to condition its consent to any waiver of a prohibited Transfer upon satisfaction of the following minimum conditions:
(i) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer, including Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes;
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including short salesby entering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not acceptable to Lender;
(viii) Transferee, Transferee’s Principals and Related Entities shall not have defaulted under its or their obligations with respect to any other Indebtedness in a manner which is not acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.31, 4.1.35, 5.1.23 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) Prior to any release of Guarantor, one (1) or more substitute guarantors acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender.
(xi) Borrower shall deliver, at its sole cost and expense, an endorsement to the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any additional exceptions or liens other than those contained in the Title Insurance Policy issued on the date hereof and the Permitted Encumbrances;
(xii) If applicable, the Property shall be managed by Qualified Manager pursuant to a Replacement Management Agreement; and
(xiii) The Property meets all of the Lender’s underwriting standards related to its financial condition, cash flow, operating income, physical condition, management and operation.
(f) Notwithstanding any provision in this Section 5.2.10 to the contrary, limited partnership or membership interests, as applicable, in Borrower may be transferred without Lender’s consent and without application of the fee set forth in Section 5.2.10(e)(i): (i) among limited partners or members, as applicable, of Borrower who are limited partners or members, as applicable, of Borrower as of the date of this Agreement (each a “Current Owner”), transferand (ii) to immediate family members (which shall be limited to a spouse, tenderparent, assignchild and grandchild (each, exchangean “Immediate Family Member”)), pledgeof any Current Owner or to trusts formed for the benefit of Immediate Family Members of such Current Owner for bona fide estate planning purposes (each, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, an “Additional Permitted Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any provided each of the Company Sharesfollowing conditions is satisfied: (A) no Default or Event of Default has occurred and is continuing; (B) Lender has received Borrower’s notice of the Additional Permitted Transfer no less than 30 days prior to the commencement of such transfer; (C) no indemnitor or Guarantor shall be released from any guaranty or indemnity agreement by virtue of the Additional Permitted Transfer; (D) Borrower shall be responsible for the costs and expenses of documenting the Additional Permitted Transfer; (E) Borrower shall reimburse Lender for all actual costs and expenses incurred by Lender in connection with the Additional Permitted Transfer, whether or not consummated; (F) once the Additional Permitted Transfer is complete, the persons with Control of Borrower and management of the Property are the same persons who have such Control and management rights immediately prior to the Additional Permitted Transfer; (G) Borrower shall furnish Lender copies of any documentation executed in connection with the Additional Permitted Transfer promptly after execution thereof; and (H) Borrower shall have delivered satisfactory evidence to Lender that, following the Additional Permitted Transfer, Borrower shall continue to comply with the provisions of Section 4.1.31 hereof. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or any interest therein, whether or not Lender has consented to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to previous Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.
Appears in 3 contracts
Samples: Commercial Loan Agreement (Red Oak Capital Fund IV, LLC), Commercial Loan Agreement (Red Oak Capital Fund IV, LLC), Commercial Loan Agreement (Red Oak Capital Fund IV, LLC)
Transfers. Shareholder (a) Borrower acknowledges that Xxxxxx has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Xxxxxxxx’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by one (1) or more sales of the Properties.
(b) Without the prior written consent of Lender, Borrower shall not, and shall not permit any Restricted Party to do any of the following: (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant a security interest in, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein; (ii) permit a Sale or Pledge of an equity interest in any Restricted Party (clauses (i) and (ii), collectively, a “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or in each case other agreement, understanding or other arrangement than (including any profit sharing arrangementA) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not otherwise expressly permitted hereby shall be null pursuant to this Section 5.2.10, and void ab initio and that (B) any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such votePermitted Debt, in each case, provided that the same does not result in a Prohibited Change of Control, unless otherwise expressly approved in writing by Xxxxxx. All Transfers that result in a Person holding a direct or indirect interest in Borrower of 10% or more, who did not hold a direct or indirect interest in Borrower of 10% or more as of the Closing Date, shall be subject to the satisfaction of Xxxxxx’s “know-your-customer requirements” with respect to such Person (unless such direct or indirect interests in Borrower are publicly listed or traded on a national securities exchange or other electronic quotation system).
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell one (1) or more Individual Properties or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of any Individual 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, Xxxxxxxx’s right, title and until Shareholder interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; and (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, Xxxxxx’s consent shall not be required in connection with any Permitted Transfer; provided, however, that (A) other than with respect to any Permitted Transfer occurring under clause (n), (o) or (p) of the definition thereof, if such transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in any Borrower (even if not constituting a Prohibited Change of Control), Borrower shall have complied delivered to Lender with respect to such Person an Additional Insolvency Opinion that in Lender’s reasonable judgment satisfies the then-current criteria of the Rating Agencies; (B) with respect to any Permitted Transfer that results in Borrower ceasing to be both Controlled and owned at least 51% directly or indirectly by Guarantor (and in connection with each subsequent conveyance or transfer that again changes the identity of any Permitted Transferee that Controls Borrower), the following conditions shall have been satisfied: (1) no Event of Default shall have occurred and be continuing; (2) Borrower shall have delivered to Lender ten (10) days’ prior written notice of such proposed Transfer; (3) Borrower shall have paid of all of Lender’s reasonable and documented fees and expenses incurred in connection with such Transfer, including Rating Agency fees; and (4) Borrower shall have paid to Lender a transfer fee in an amount equal to 0.25% of the Principal Indebtedness at the time of such conveyance or transfer; and (C) other than with respect to any Permitted Transfer occurring under clause (n), (o) or (p) of the definition thereof, if any Transfer results in a Person holding a direct or indirect interest in Borrower of 10% or more (and such Person did not hold a direct or indirect interest in Borrower of 10% or more as of the Closing Date), such Person must satisfy Lender’s “know-your-customer requirements”, unless such direct or indirect interests in Borrower are publicly listed or traded on a national securities exchange or other electronic quotation system.
(e) Other than the transfer of the Condemnation Parcel in accordance with the terms of this Agreement, no direct Transfer of any Individual Property (or any direct equity interests in any Individual Borrower) shall occur during the Blackout Window.
(f) Except during the Blackout Window, the initial Borrower shall have the right to contemporaneously Transfer all of the Collateral to a successor borrower that will assume all of the obligations of Xxxxxxxx hereunder and under the other Loan Documents, provided the following conditions are met to the reasonable satisfaction of Xxxxxx:
(i) no Event of Default shall have occurred and be continuing;
(ii) Lender shall receive thirty (30) days’ prior written notice of such proposed Transfer;
(iii) assumption of this Agreement, the Note, the Mortgage and/or the other Loan Documents by the proposed successor borrower, and a reaffirmation of each applicable Loan Document by each of Borrower, Sole Member and Guarantor (prior to giving effect to such Transfer) as reasonably requested by Xxxxxx, subject to the provisions of Section 9.3 hereof;
(iv) payment of all of reasonable and documented fees and expenses incurred in connection with such Transfer including, without limitation, the cost of any third party reports, legal fees and expenses, application fees, Rating Agency fees and expenses or required legal opinions;
(v) payment of an assumption fee equal to 0.25% of the Principal Indebtedness at the time of such Transfer;
(vi) delivery of an Additional Insolvency Opinion reflecting the proposed Transfer reasonably satisfactory in form and substance to Lender;
(vii) the proposed successor xxxxxxxx’s continued compliance with the representations and covenants set forth in Section 4.1.9, Section 4.1.30, Section 4.1.35, Section 5.1.23, Section 5.1.24 and Section 5.2.9 hereof;
(viii) delivery of evidence reasonably satisfactory to Xxxxxx that the proposed successor borrower is a Special Purpose Entity;
(ix) the proposed successor borrower shall be Controlled and at least 51% owned by (directly or indirectly) one or more Permitted Transferees, and Lender shall be provided with reasonable evidence thereof;
(x) the proposed successor borrower and its Controlling Permitted Transferee(s) shall not have been the subject of any Bankruptcy Action within seven (7) years prior to the date of the proposed Transfer;
(xi) there shall be no material litigation or regulatory action pending or threatened against the proposed successor borrower or its Controlling Permitted Transferee(s) which would reasonably be expected to materially impair, or does not impair, the proposed transferee’s ability to comply with the terms of the Loan Documents;
(xii) neither the proposed successor borrower nor its Controlling Permitted Transferee(s) shall have defaulted under its obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(xiii) prior to any release of Guarantor, a substitute guarantor reasonably acceptable to Lender shall have assumed the Limited Recourse Guaranty and Environmental Indemnity executed by Guarantor or executed a replacement guaranty and environmental indemnity reasonably satisfactory to Lender and delivered an Additional Insolvency Opinion covering the replacement guarantor; upon assumption of the Limited Recourse Guaranty and Environmental Indemnity by such substitute guarantor reasonably acceptable to Lender or deliver of an executed a replacement guaranty and environmental indemnity reasonably satisfactory to Lender by such substitute guarantor and delivery of an Additional Insolvency Opinion covering such substitute guarantor, Lender shall release Guarantor from any matters arising from and after the date of such release;
(xiv) if required by Xxxxxx, proposed successor borrower and its Controlling Permitted Transferee(s) shall be approved by the Approved Rating Agencies selected by Lender, which approval, if required by Xxxxxx, shall take the form of a Rating Agency Confirmation with respect to the assumption of the Loan;
(xv) delivery of (i) all organizational documentation reasonably requested by Xxxxxx, which shall be reasonably satisfactory to Lender and, following a Securitization, satisfactory to the Approved Rating Agencies and (ii) all certificates, agreements and legal opinions reasonably required by Xxxxxx;
(xvi) Lender shall have received, at no cost or expense to Lender, an endorsement to the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Properties and naming the proposed successor borrower as owner of the Properties, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Properties shall not be subject to any additional exceptions or liens other than those contained in the Title Insurance Policy issued on the date hereof, the Permitted Encumbrances and Liens being contested in accordance with this Agreement; and
(xvii) such other conditions as may be required for Lender to comply with its own internal policies as of the date of such Transfer, including, without limitation, any policies with respect to the creditworthiness, reputation and qualifications of the proposed successor borrower or its Controlling Permitted Transferee(s).
(g) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer that requires Xxxxxx’s consent hereunder and which consent has not been obtained prior to such Transfer. This provision shall apply to every Transfer that requires Xxxxxx’s consent hereunder regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer that requires Xxxxxx’s consent.
(h) Except for a Permitted Transfer or as otherwise expressly permitted hereunder, no direct or indirect equity interest in or right to distributions from Borrower shall be subject to a Lien in favor of any Person, and neither Borrower nor any holder of a direct or indirect interest in Borrower shall issue preferred equity (or debt granting the holder thereof rights substantially similar to those generally associated with preferred equity); provided, however, that, notwithstanding anything to the contrary herein, the following shall be permitted without the consent of Lender: (A) a Lien permitted as a Permitted Transfer, (B) any Lien on direct or indirect equity interests in and/or rights to distributions from Guarantor or any Person owning a direct or indirect interest in Guarantor and (C) the issuance of direct or indirect preferred equity interests in Guarantor or any Person owning a direct or indirect interest in Guarantor. To the extent a transaction is permitted under the definition of Permitted Transfer or clause (f) above, such transaction shall for all purposes be deemed permitted, notwithstanding that another clause may otherwise limit such transaction, provided that any requirements and/or conditions expressly set forth in the definition of Permitted Transfer or clause (f) above are satisfied and no Event of Default is continuing.
(i) Notwithstanding anything contained herein or in any other Loan Document to the contrary, so long as Lineage Logistics Holdings, LLC is a Guarantor under the Loan, Lineage Logistics Holdings, LLC shall, subject to the MT Enforcement Rights, (A) continue to own (beneficially and of record) one hundred percent (100%) of the direct or indirect equity interests in each Master Tenant and (B) cause each Master Tenant, any subtenant of any Master Tenant and/or any Taxable REIT Subsidiary to continue to engage in the businesses conducted by such Master Tenant as of the Closing Date, in each case of clauses (A) and (B), unless Lender shall otherwise consent (not to be unreasonably withheld, conditioned or delayed). Borrower and Xxxxxx hereby acknowledge and agree that any breach or violation of this Section 5.2.10(i) shall be (and shall be deemed and construed to be) (x) a Prohibited Change of Control and (y) a prohibited Transfer. For the avoidance of doubt, (i) to the extent an exercise of the MT Enforcement Rights by one or more of the MT Secured Lenders results in the foreclosure or transfer in lieu of foreclosure of the direct or indirect equity interests in any Master Tenant, any subtenant of any Master Tenant or any Taxable REIT Subsidiary, the same shall not be deemed or construed to be a breach or violation of the requirement described in this paragraph or a Prohibited Change of Control or a prohibited Transfer, and (ii) upon the occurrence of any such foreclosure or transfer in lieu of foreclosure, the provisions described in this paragraph will automatically terminate and have no further force and effect with respect to any Person that is the subject of any such foreclosure or transfer in lieu of foreclosure.
Appears in 2 contracts
Samples: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, Inc.)
Transfers. Shareholder Beginning on the date hereof until the Termination Date, each Stockholder hereby covenants and agrees that, except as expressly permitted by this Proxy and Agreement, (a) such Stockholder shall not, directly or indirectly (i) directly tender any Covered Shares into any tender or indirectly exchange offer, sell (including short sales)ii) offer, sell, transfer, tender, assign, exchange, pledge, hypothecate, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), ) or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a the Transfer of, any of the Company SharesCovered Shares or beneficial ownership, voting power or any other interest thereinthereof or therein (including by operation of law), except pursuant to any Person, the Rollover Agreement (iito the extent applicable to such Stockholder) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Sharesas a Permitted Transfer, (iii) grant any proxies or powers of attorney attorney, deposit any Covered Shares into a voting trust or enter into a voting agreement with respect to any Covered Shares that is inconsistent with this Proxy and Agreement, or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees Notwithstanding the foregoing, but subject to the terms of the Rollover Agreement (to the extent applicable to such Stockholder), this Proxy and Agreement shall not restrict Transfers by a Stockholder of any or all of its Covered Shares to any of its Affiliates provided, that any Transfer prior to and as a condition to the effectiveness of Subject Shares not permitted hereby such Transfer, such Affiliate shall have executed and delivered to the Company a counterpart of this Proxy and Agreement pursuant to which such Affiliate shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale bound by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsterms and provisions of this Proxy and Agreement. Any Transfer in violation of this Section 3.1 shall be void ab initio. “Permitted Transfer” shall mean (A) a pledge, liabilities and hypothecation, or collateral assignment of, or grant of a security interest in, Covered Shares or any interest or rights under this Agreementtherein as security or collateral for a bona fide loan or other obligation (collectively, which shall continue in full force and effect for a “Pledge”), or (B) after notice to the Term. The Company agrees that if Shareholder attempts Acquiror, the transfer or conversion of ownership of Covered Shares or any interests or rights therein to Transfer, vote a lender or provide any other Person with the authority to vote any beneficiary of the Company Shares Pledge pursuant to a foreclosure thereof following a default under the loan or other than in strict compliance with this Agreement, obligation secured by the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementPledge.
Appears in 2 contracts
Samples: Irrevocable Proxy and Agreement (Us Xpress Enterprises Inc), Irrevocable Proxy and Agreement (Us Xpress Enterprises Inc)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to amend and restate this Agreement, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10 and Section 5.2.11, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any direct legal or direct beneficial interest therein or (ii) permit a Sale or Pledge of a direct interest in Borrower or Xxxxxx’x Manager held by HOC on the Closing Date, or any indirect interest (an “Intermediate Interest”) in Borrower or Xxxxxx’x Manager created by conveying direct interests held by HOC on the Closing Date to an intermediate subsidiary of HOC (collectively, a “Transfer”), or enter into other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20. For the purposes of this Section 5.2.10, any contract, option, derivative, hedging, swap, forward removal from the Property of memorabilia or other agreementpersonal property provided to Borrower for use or display at the Property pursuant to the terms of the PH License (other than any replacement of the same in accordance with the terms hereof) shall be deemed to constitute a Transfer of a part of the Property and shall require the prior written consent of Lender in its reasonable discretion in each instance. Borrower acknowledges that Lender may impose conditions to its approval of a Transfer, understanding or other arrangement (including any profit sharing arrangement) including, with respect to a Transfer of the Property in connection with which the transferee assumes the obligations of Borrower under the Loan and the Loan Documents, payment of an assumption fee of one quarter of one percent (0.25%) of the outstanding principal balance of the Loan.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.23.
(d) Notwithstanding the foregoing provisions of this Section 5.2.10 or anything else to the contrary contained in this Agreement or any other Loan Document, but subject to the satisfaction of all conditions set forth or referenced in this Section 5.2.10(d), Lender’s consent shall not be required in connection with any of the Company Sharesfollowing Transfers (each, a “Permitted Transfer”):
(i) the Transfer, in one or a series of transactions, of not more than 49% in the aggregate of the direct or indirect interests in Borrower or Xxxxxx’x Manager; provided that after giving effect to such Transfer and any interest thereinother Transfers, to any Person, no Change of Control shall occur;
(ii) enter into the Transfer, in one or a series of transactions, of any voting arrangementdirect or indirect interests in any Restricted Party to any other Restricted Party, whether any Affiliate of a Restricted Party or to any direct or indirect member or partner of any Restricted Party provided that after giving effect to such Transfer and any other Transfers, no Change of Control shall occur;
(iii) any Transfer by proxymaintenance, voting devise or bequest or by operation of law upon the death of a natural person that was the holder of any direct or indirect interest in any Restricted Party to a member of the immediate family of such person or a trust established for the benefit of such immediate family member, provided that after giving effect to such Transfer and any other Transfers, no Change of Control shall occur;
(iv) the Transfer, in one or a series of transactions, of any direct or indirect interests in Guarantor or, subject to the provisions of subsection (e) below, in HOC;
(v) any arm’s-length sale of Personal Property by Borrower to a third party in the ordinary course of business and any disposition of Equipment and FF&E which is being replaced in the ordinary course of business or is otherwise no longer necessary or is immaterial; and
(vi) Permitted Encumbrances. Notwithstanding the foregoing, each of the Permitted Transfers set forth in this Section 5.2.10(d) shall be subject to, and Lender’s agreement to permit the same without specific consent, shall be conditioned upon the satisfaction of the following conditions:
(A) if such Transfer (either individually or otherwisein the aggregate with any prior Transfers) would result in a Change in Control of Borrower or Xxxxxx’x Manager, Lender shall receive not less than ten (10) Business Days prior written notice from Borrower of such Transfer;
(B) if such Transfer is of a direct interest or Intermediate Interest in Borrower or Xxxxxx’x Manager, Lender shall receive not less than ten (10) Business Days prior written notice from Borrower of such Transfer;
(C) if such Transfer (either individually or in the aggregate with any prior Transfers) would result in Sponsor or HOC no longer holding any direct or indirect interest in Borrower or Xxxxxx’x Manager, Lender shall receive not less than ten (10) Business Days prior written notice from Borrower of such Transfer;
(D) if neither of the circumstances set forth in clauses (A), (B) or (C) shall apply with respect to such Transfer, Lender shall receive written notice of such Transfer from Borrower within ten (10) Business Days following the effective date of such Transfer; provided that, no such notice shall be required with respect to any Transfer of a direct or indirect interest in Guarantor or HOC;
(E) if after giving effect to any Permitted Transfer, more than forty-nine percent (49%) in the aggregate of the Subject Sharesdirect interests or Intermediate Interests in Borrower or Xxxxxx’x Manager are owned by a Person and its Affiliates that owned less than forty-nine percent (49%) of the direct interests or Intermediate Interests in Borrower or Xxxxxx’x Manager, as applicable, as of the Closing Date, a Rating Agency Confirmation shall have been obtained and, no less than thirty (iii30) grant days prior to the effective date of any proxies such Transfer, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies;
(F) no Permitted Transfer (either individually or powers in the aggregate with any prior Transfers) shall cause or otherwise result in the termination, revocation and/or suspension of attorney any Gaming License or otherwise have any material and adverse effect on the ability of Manager or Borrower to operate the Casino Component in accordance with respect all applicable Gaming Laws;
(G) no such Permitted Transfer of a direct interest in Borrower or Xxxxxx’x Manager that results in a Change of Control of Borrower or Xxxxxx’x Manager shall be to any Disqualified Transferee; and
(H) no such Permitted Transfer shall result, directly or all indirectly, either individually or in the aggregate, in any Disqualified Transferee being in Control of Borrower or Xxxxxx’x Manager or having a direct interest in Borrower or Xxxxxx’x Manager.
(e) Notwithstanding anything to the contrary contained in this Section 5.2.10 or elsewhere in the Loan Documents, no transfer or conveyance, directly or indirectly, by Guarantor of interests in HOC that results in Guarantor (i) no longer Controlling HOC or (ii) owning less than 49% of the Subject Shares, direct or indirect interests in HOC shall be permitted without the prior consent of Lender unless (ivA) agree to divest itself the obligations of any voting rights Guarantor under the Guaranty are simultaneously by a guarantor that satisfies the “Net Worth” and “Liquid Assets” requirements set forth in the Subject Shares or (v) commit or agree to take any Section 4.7 of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null Guaranty and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of (B) the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which Property shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue be managed by a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementQualified Manager as required hereunder.
Appears in 2 contracts
Samples: Loan Agreement (Caesars Acquisition Co), Loan Agreement (Harrahs Entertainment Inc)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and Mortgage Borrower and their stockholders, general partners, members, principals and (if Borrower or Mortgage Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Mortgage Borrower’s ownership of the Property and Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Collateral and the Property so as to ensure that, should Borrower default in the repayment of the Debt, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior written consent of Lender, Borrower shall not, and shall not permit Mortgage Borrower or any Restricted Party to do any of the following (collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectively, “Transfer”)the Collateral or the Property or any part thereof or any legal or beneficial interest therein, or enter into (ii) permit a Sale or Pledge of any contractEquity Interests in Borrower, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company SharesMortgage Borrower, or any interest thereinRestricted Party. Any Transfer made in violation of this Agreement shall be void. Notwithstanding the foregoing to the contrary, Permitted Transfers may occur without Lender’s prior written consent.
(c) A Transfer shall include, but not be limited to: (i) an installment sales agreement wherein Borrower agrees to sell the Collateral or any Person, part thereof for a price to be paid in installments; (ii) enter into any voting arrangementan agreement by Mortgage Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect Mortgage Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect to any such corporation’s stock or all the creation or issuance of the Subject Shares, new stock; (iv) agree to divest itself if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the Equity Interests of any voting rights in general partner or any profits or proceeds relating to such Equity Interests, or the Subject Shares Sale or Pledge of Equity Interests of limited partners or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit if a Restricted Party is a limited liability company, any merger or agree to take consolidation or the change, removal, resignation or addition of a managing member or non member manager (or if no managing member, any member) or the Sale or Pledge of the foregoing actions. Shareholder agrees that Equity Interests of a managing member (or if no managing member, any Transfer member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of Subject Shares not permitted hereby shall be null and void ab initio and that non managing membership interests or the creation or issuance of new non managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any merger, consolidation or the Sale or Pledge of the Company Shares occurs legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, vii) the removal or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees resignation of the initial transfereemanaging agent (including an Affiliated Manager) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied accordance with the terms of this Agreement; or (viii) the cash flow from the Property (or Borrower’s rights to cash distributions from Mortgage Borrower) or any portion thereof are sold, assigned, transferred, hypothecated, pledged or otherwise encumbered, directly or indirectly, or occurring by operation of law or otherwise, other than pursuant to the Mortgage Loan Documents.
(d) Notwithstanding the provisions of this Section 5.2.9, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in Borrower or Guarantor; provided, however, no such Transfer shall result in the change of Control in a Borrower or Guarantor, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in Borrower or Guarantor are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies.
(e) Solely in connection with a sale of the Property permitted pursuant to and in accordance with Section 5.2.10(e) of the Mortgage Loan Agreement, a new borrower (“New Borrower”), owning indirectly 100% of the unencumbered equity interests in the proposed new owner of the Property (the “New Owner”) may assume Borrower’s obligations hereunder (hereafter, a “Proposed Loan Assumption”) provided that each of the following terms and conditions is satisfied in Lender’s discretion:
(i) each of the New Borrower and New Owner are approved by Lender;
(ii) each of the conditions set forth in Section 5.2.10 of the Mortgage Loan Agreement has been satisfied, as determined by Mortgage Lender;
(iii) no Event of Default has occurred and is continuing and no event shall have occurred that by the passage of time or delivery of notice would become an Event of Default;
(iv) Borrower shall give Lender written notice of such Transfer request not less than sixty (60) days prior to the proposed date of such Transfer and such Proposed New Assumption does not occur 60 days prior to or 60 days after a Securitization;
(v) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies, if applicable);
(vi) If applicable, Lender has received a Rating Agency Confirmation regarding the Proposed Loan Assumption;
(vii) New Borrower shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including by entering into an assumption agreement in form and substance satisfactory to Lender;
(viii) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such Transfer;
(ix) Lender shall have received such documents, certificates and legal opinions as it may reasonably request;
(x) New Owner, New Borrower and the property manager shall have sufficient experience in the ownership and management of properties similar to the Property, and Lender shall be provided with reasonable evidence thereof (and Lender reserves the right to approve the New Borrower without approving the substitution of the property manager);
(xi) prior to any release of the Guarantor, a substitute guarantor acceptable to Lender shall have assumed the Guaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender;
(xii) Borrower and New Borrower execute, without any cost or expense to Lender, any additional documents reasonably requested by Lender to evidence and perfect Lender’s interests under the Loan Documents;
(xiii) New Borrower delivers certificated securities to Lender representing 100% of the equity ownership interests in New Owner (such interests, along with any other collateral securing the Loan, the “New Collateral”) and grants Lender a perfected first priority lien in such New Collateral;
(xiv) New Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender’s “Eagle 9” or “UCC Plus” (or equivalent) insurance policy which insures Lender’s lien in the New Collateral, hazard insurance policy endorsements or certificates and other similar materials as Lender may reasonably deem necessary at the time of the Proposed Loan Assumption, all in form and substance satisfactory to Lender; and
(xv) Lender may, as a condition to evaluating any requested consent to a transfer, require that Borrower post a cash deposit with Lender in an amount equal to Lender’s anticipated costs and expenses in evaluating any such request for consent. The foregoing release shall be effective upon the date of such Transfer, but Lender agrees to provide written evidence thereof reasonably requested by Borrower.
(f) Notwithstanding any provision in this Section 5.2.9 to the contrary, limited partnership or membership interests, as applicable, in Borrower may be transferred without Lender’s consent and without application of the fee set forth in Section 5.2.9(e)(viii): (i) among limited partners or members, as applicable, of Borrower who are limited partners or members, as applicable, of Borrower as of the date of this Agreement (each a “Current Owner”), and (ii) to immediate family members (which shall be limited to a spouse, parent, child and grandchild (each, an “Immediate Family Member”)), of any Current Owner or to trusts formed for the benefit of Immediate Family Members of such Current Owner for bona fide estate planning purposes (each, an “Additional Permitted Transfer”), provided each of the following conditions is satisfied: (A) no Event of Default has occurred and no event has occurred that with notice and/or the passage of time, or both, would constitute an Event of Default; (B) Lender has received Borrower’s notice of the Additional Permitted Transfer no less than 30 days prior to the commencement of such transfer; (C) no Indemnitor or Guarantor shall be released from any guaranty or indemnity agreement by virtue of the Additional Permitted Transfer; (D) Borrower shall be responsible for the costs and expenses of documenting the Additional Permitted Transfer; (E) Borrower shall reimburse Lender for all actual costs and expenses incurred by Lender in connection with the Additional Permitted Transfer, whether or not consummated; (F) once the Additional Permitted Transfer is complete, the persons with Control of Borrower and management of the Property are the same persons who have such Control and management rights immediately prior to the Additional Permitted Transfer; (G) Borrower shall furnish Lender copies of any documentation executed in connection with the Additional Permitted Transfer promptly after execution thereof; (H) Borrower shall have delivered satisfactory evidence to Lender that, following the Additional Permitted Transfer, Borrower shall continue to comply with the provisions of Section 4.1.20 hereof; (I) upon Lender’s request, delivery of an Additional Insolvency Opinion acceptable to Lender; and (J) the Additional Permitted Transfer is permitted under the Mortgage Loan Documents.
(g) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(h) Borrower shall pay all costs and expenses of Lender in connection with any Transfer, including all fees and expenses of Lender’s counsel, whether internal or outside, and the cost of any required counsel opinions related to REMIC or other securitization or tax issues and any Rating Agency fees.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement, Mezzanine Loan Agreement (TNP Strategic Retail Trust, Inc.)
Transfers. Shareholder Beginning on the date hereof until the Termination Date, each Stockholder hereby covenants and agrees that, except as expressly contemplated by this Agreement, (a) such Stockholder shall not, and shall direct its Affiliates and their respective Representatives not to, directly or indirectly, (i) directly tender any Covered Shares into any tender or indirectly exchange offer, sell (including short sales)ii) offer, sell, transfer, tender, assign, exchange, pledge, hypothecate, hedge, gift, loan, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), ) or enter into any contractContract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a the Transfer of, any of the Company SharesCovered Shares or beneficial ownership, voting power or any other interest therein, to any Person, thereof or therein (ii) enter into any voting arrangement, whether including by proxy, voting agreement or otherwise, with respect to any operation of the Subject Shareslaw), (iii) grant any proxies or powers of attorney attorney, deposit any Covered Shares into a voting trust or enter into a voting agreement with respect to any Covered Shares that is inconsistent with this Agreement, or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Any Transfer in violation of Subject Shares not permitted hereby this Section 4.1 shall be null and void ab initio and that initio. Notwithstanding anything to the contrary in this Agreement, any such prohibited Stockholder may Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsCovered Shares, liabilities and rights under this Agreementin accordance with applicable law, which shall continue in full force and effect to (A) such Stockholder’s Affiliates or (B) to any custodian or nominee for the Term. The Company agrees that if Shareholder attempts purpose of the Covered Shares for the account of such Stockholder; provided, that, prior to Transferand as a condition to the effectiveness of such Transfer contemplated by the foregoing clause (A), vote or provide any other each Person with the authority to vote whom any of such Covered Shares or any interest in any of such Covered Shares is or may be transferred shall have executed and delivered to Parent a counterpart of this Agreement in a form reasonably acceptable to Parent pursuant to which such Affiliate shall be bound by all of the Company Shares other than terms and provisions hereof in strict compliance with this Agreementwhich case such Affiliate shall be deemed a Stockholder hereunder, and the transferor shall remain liable for all of its obligations hereunder. From the date hereof until the Exchange Time, subject to the immediately preceding sentence, the Company Stockholders shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any retain all of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementSponsor Shares.
Appears in 2 contracts
Samples: Support Agreement (HireRight Holdings Corp), Support Agreement (HireRight Holdings Corp)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Properties.
(b) Without the prior written consent of Lender, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) any of the Properties or any part thereof or any legal or beneficial interest therein, or (collectivelyii) permit a Sale or Pledge of any interest in any Restricted Party (any of the actions in the foregoing clauses (i) or (ii), a “Transfer”), other than (A) Transfers pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20 hereof, and (B) Transfers that are Permitted Transfers in accordance with Section 5.2.10(g) hereof.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell any of the Property, or enter into any contractpart thereof, optionfor a price to be paid in installments; (ii) an agreement by Borrower leasing all or substantially all of any of the Properties for other than actual occupancy by a space tenant thereunder, derivativeor a sale, hedging, swap, forward assignment or other agreementtransfer of, understanding or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other arrangement than in accordance with Section 5.1.22 hereof.
(including d) Notwithstanding the provisions of this Section 5.2.10, but subject to the terms and conditions set forth below in clause (g) of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers of: (i) direct or indirect interests in Borrower among the Sponsors and any profit sharing arrangementSponsor Controlled Parties; (ii) not more than forty-nine percent (49%) of the direct or indirect stock, general partnership interests, the limited partnership interests, the managing member interests or non-managing membership interests (as the case may be) in Borrower, Principal or any other Restricted Party; (iii) the sale, transfer or issuance of stock in any Restricted Party so long as such stock is listed on the New York Stock Exchange or another nationally or internationally recognized stock exchange; or (iv) direct or indirect interests in Borrower for estate planning purposes by any Sponsor to the spouse, child, parent, grandparent, grandchild, niece, nephew, aunt or uncle of such Sponsor, or to a trust for the benefit of such Sponsor or for the benefit of the spouse, child, parent, grandparent, grandchild, niece, nephew, aunt or uncle of such Sponsor. Furthermore, subject to the terms and conditions set forth in clause (g) of this Section 5.2.10, Lender’s consent shall not be required in connection with a Sponsor Transfer.
(e) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(f) There shall be no assumption of the Loan during the period that is thirty (30) days prior to and continuing until thirty (30) days following the Securitization of any portion of the Loan. Other than as set forth in the preceding sentence, Borrower shall have the right to unlimited Transfers of all of the Properties (and not a portion thereof) with Lender’s consent, not to be unreasonably withheld, provided no Event of Default has occurred and is continuing, and Lender receives thirty (30) days’ prior written notice of such Transfer and a non-refundable application fee of $5,000 at the time Lender’s consent is sought, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay Lender a transfer fee equal to one half of one percent (.5%) of the Outstanding Principal Balance at the time of such Transfer (for the avoidance of doubt, this transfer fee shall not apply in the case of a Sponsor Transfer);
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes, servicer costs and fees and the fees and expenses of the Approved Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have the creditworthiness, reputation and qualifications to Lender’s reasonable satisfaction;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly by Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(viii) Transferee, Transferee’s Principals and Related Entities shall not have defaulted under its or their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 5.1.23, 5.2.9 and 5.2.12 hereof, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements and covenants reasonably required by Lender;
(x) Each Approved Rating Agency shall have issued a Rating Agency Confirmation with respect to such Transfer;
(xi) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender and each Approved Rating Agency;
(xii) Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and the Environmental Indemnity or shall execute a replacement guaranty and environmental indemnity in form and substance reasonably satisfactory to Lender;
(xiii) Borrower shall deliver, at its sole cost and expense, an endorsement to the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Properties and naming the Transferee as owner of the Properties, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Properties shall not be subject to any additional exceptions or liens other than those contained in the Title Insurance Policy issued on the date hereof and the Permitted Encumbrances;
(xiv) If required under the terms hereof, the Property shall be managed by a Qualified Manager pursuant to a Replacement Management Agreement; and
(xv) Immediately upon a Transfer ofto such Transferee and the satisfaction of all of the above requirements, the named Borrower and Guarantor herein shall be released from all liability under this Agreement, the Note, the applicable Security Instrument and the other Loan Documents accruing after such Transfer. The foregoing release shall be effective upon the date of such Transfer, but Lender agrees to provide written evidence thereof reasonably requested by Borrower.
(g) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, each Permitted Transfer shall be conditioned upon: (i) no such Transfer resulting in the change of Control in Borrower such that a Sponsor Controlled Party does not Control each of Borrower, any Affiliated Manager, and any Principal and the day-to-day operation of the Company Shares, or any interest therein, to any PersonProperty, (ii) enter into other than a Transfer pursuant to clause (d)(iii) above, Lender receiving not less than thirty (30) days’ prior notice of such Transfer (or in the case of any voting arrangementTransfer pursuant to clause (a) or (b) set forth herein in the definition of “Permitted Transfer”, whether by proxy, voting agreement or otherwise, with respect to Lender receiving notice within thirty (30) days of any of the Subject Sharessuch Transfer), (iii) grant any proxies if a Manager is required under Section 5.1.22, the Property continuing to be managed by Affiliated Manager or powers of attorney a Qualified Manager approved in accordance with respect to any or all of the Subject Sharesterms and conditions hereof, (iv) agree Sponsor continuing to divest itself directly or indirectly own at least a 20% equity interest in each of Borrower and any voting rights in the Subject Shares or Principal both prior to and after such Transfer, (v) commit other than a Transfer pursuant to clause (d)(iii) above, each proposed transferee (A) remaking the representations contained herein applicable to such proposed transferee, including those relating to Special Purpose Entity requirements, ERISA matters, the USA Patriot Act, OFAC and matters concerning Embargoed Persons and (B) satisfying, to Lender’s satisfaction, Lender’s “know your customer” requirements relating to the creditworthiness, reputation, background and qualifications of such proposed transferee, provided, however, that Lender’s “know your customer” requirements will not apply if such proposed transferee owns or agree to take any will own less than a ten percent (10%) direct or indirect interests in Borrower, (vi) such Transfer being permitted under the terms of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null REA, and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transfereevii) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance the case of any Transfer pursuant to clause (a) or (b) set forth herein in the definition of “Permitted Transfer” or a Transfer pursuant to clause (d)(iii) above, no Event of Default continuing on the date such Transfer occurs and on the day after such Transfer occurs. Upon request from Lender, Borrower shall promptly provide Lender a revised version of the organizational chart delivered to Lender in connection with the Loan reflecting any Permitted Transfer consummated in accordance with this AgreementSection 5.2.10. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the Company shall not aggregate of direct or indirect interests in Borrower are owned by any Person and its Affiliates that owned less than forty-nine percent (x49%) permit direct or indirect interest in Borrower as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer on (other than a Transfer pursuant to clause (d)(iii) above), deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementRating Agencies.
Appears in 2 contracts
Samples: Loan Agreement (Global Medical REIT Inc.), Loan Agreement (Global Medical REIT Inc.)
Transfers. Shareholder (i) Each Issuer acknowledges that Initial Noteholder has examined and relied, and each Noteholder will rely, on the experience of Issuers and their respective general partners, members, principals and (if Issuer is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to purchase the Notes, and will continue to rely on Issuers’ ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the obligations contained in the Financing Documents. Each Issuer acknowledges that Trustee has a valid interest in maintaining the value of the Property so as to ensure that, should Issuers default in the repayment of the Debt or the performance of the obligations contained in the Financing Documents, Trustee can recover the Debt by a sale of the Property.
(ii) Except to the extent otherwise set forth in this Section 7.02(j), no Issuer shall, nor shall notany Issuer permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party (collectively, a “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect than pursuant to a Transfer of, any Leases of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights space in the Subject Shares or (v) commit or agree Improvements to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee tenants in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person accordance with the authority to vote any provisions of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.Section 7.01
Appears in 2 contracts
Samples: Note Indenture (Kerzner International LTD), Note Indenture (Kerzner International LTD)
Transfers. Shareholder Beginning on the date hereof until the Termination Date, each Stockholder hereby covenants and agrees that, except as expressly permitted by this Proxy and Agreement, (a) such Stockholder shall not, directly or indirectly (i) directly tender any Covered Shares into any tender or indirectly exchange offer, sell (including short sales)ii) offer, sell, transfer, tender, assign, exchange, pledge, hypothecate, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), ) or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a the Transfer of, any of the Company SharesCovered Shares or beneficial ownership, voting power or any other interest thereinthereof or therein (including by operation of law), except pursuant to any Person, the Rollover Agreement (iito the extent applicable to such Stockholder) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Sharesas a Permitted Transfer, (iii) grant any proxies or powers of attorney attorney, deposit any Covered Shares into a voting trust or enter into a voting agreement with respect to any Covered Shares that is inconsistent with this Proxy and Agreement, or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees Notwithstanding the foregoing, but subject to the terms of the Rollover Agreement (to the extent applicable to such Stockholder), this Proxy and Agreement shall not restrict Transfers by a Stockholder of any or all of its Covered Shares to any of its Affiliates provided, that any Transfer prior to and as a condition to the effectiveness of Subject Shares not permitted hereby such Transfer, such Affiliate shall have executed and delivered to the Company a counterpart of this Proxy and Agreement pursuant to which such Affiliate shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale bound by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsterms and provisions of this Proxy and Agreement. Any Transfer in violation of this Section 3.1 shall be void ab initio. “Permitted Transfer” (A) a pledge, liabilities and hypothecation, or collateral assignment of, or grant of a security interest in, Covered Shares or any interest or rights under this Agreementtherein as security or collateral for a bona fide loan or other obligation (collectively, which shall continue in full force and effect for a “Pledge”), or (B) after notice to the Term. The Company agrees that if Shareholder attempts Acquiror, the transfer or conversion of ownership of Covered Shares or any interests or rights therein to Transfer, vote a lender or provide any other Person with the authority to vote any beneficiary of the Company Shares Pledge pursuant to a foreclosure thereof following a default under the loan or other than in strict compliance with this Agreement, obligation secured by the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementPledge.
Appears in 2 contracts
Samples: Irrevocable Proxy and Agreement (Fuller Max L), Irrevocable Proxy and Agreement (Knight-Swift Transportation Holdings Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Xxxxxx has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the 156506983 Property in agreeing to make the Loan, and will continue to rely on Xxxxxxxx’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of and all other obligations of Borrower under this Agreement, the Security Instrument, the Note and the other Loan Documents. Borrower acknowledges that Xxxxxx has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the other obligations of Borrower under this Agreement, the Security Instrument, the Note and the other Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Xxxxxx, and except to the extent otherwise set forth in this Section 7.1, Borrower shall not, and shall not permit any Restricted Party do any of the following (individually and collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Property or any part thereof or any legal or beneficial interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement PACE Loan or otherwise, with respect to any of the Subject Shares, (iii) permit a Sale or Pledge of any direct or indirect interest in Borrower; other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 4.15 and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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 any proxies or powers of attorney with respect a security interest in, Borrower’s right, title and interest in and to any Leases or all any Rents and Profits; (iii) if a Restricted Party is a corporation, any merger, consolidation or a Sale or Pledge of such corporation’s stock or the Subject Shares, creation or issuance of new stock; (iv) agree to divest itself if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any voting rights in general partner or any profits or proceeds relating to such partnership interest, or the Subject Shares Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit if a Restricted Party is a limited liability company, any merger or agree to take consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the foregoing actions. Shareholder agrees that membership interest of a managing member (or if no managing member, any Transfer member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of Subject Shares not permitted hereby shall be null and void ab initio and that non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any such prohibited Transfer may and should be enjoined. If merger, consolidation or Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) any involuntary Transfer change in Control of any Individual Borrower or Guarantor, directly or indirectly.
(d) Notwithstanding the provisions of this Section 7.1, Xxxxxx’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee direct or indirect ownership interests in any bankruptcy, Individual Borrower or Guarantor or a sale to a purchaser at any creditor’s or court sale)REIT Transfer; provided, the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such votehowever, in each case, unless each of the following conditions (collectively, the “Transfer Conditions”) are satisfied: (i) intentionally omitted; (ii) if such Transfer is a KYC Triggering Transfer, (A) Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer and until Shareholder (B) Lender shall have complied performed searches and/or received other diligence such that Lender is in compliance with Lender’s then current “know your customer” requirements 156506983 and Lender shall have received Satisfactory Search Results, at Borrower’s cost and expense, with respect to the applicable transferee; (iii) Borrower shall remake (or if such Transfer is not a KYC Triggering Transfer, Borrower shall be deemed to have automatically remade, effective as of the date of the consummation of such Transfer) the representations and warranties contained herein relating to ERISA, OFAC and Prohibited Persons (and, upon Xxxxxx’s request, each Individual Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of the applicable Transfer); (iv) no Event of Default shall be continuing at the time of such Transfer and such Transfer shall not result in the occurrence of an Event of Default; and (v) at all times, General Partner must continue to (A) Control each of Individual Borrower, Guarantor and any Affiliated Manager and (B) own, directly or indirectly, at least a 51% legal and beneficial interest in each Individual Borrower, Guarantor and any Affiliated Manager. Upon request from Xxxxxx, Borrower shall promptly provide Lender with a revised version of the organizational chart delivered to Lender in connection with the terms Loan reflecting any Transfer consummated in accordance with this Section 7.1(d).
(e) Lender shall not be required to demonstrate any actual impairment of this Agreementits security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Xxxxxxxx’s Transfer without Xxxxxx’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
Appears in 2 contracts
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.), Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Transfers. Shareholder Tenant shall not, by operation of law or otherwise, (a) assign, transfer, mortgage, pledge, hypothecate or otherwise encumber this Lease, the Premises or any part of or interest in this Lease or the Premises, (b) grant any concession or license within the Premises, (c) sublet all or any part of the Premises or any right or privilege appurtenant to the Premises, or (d) permit any other party to occupy or use all or any part of the Premises (collectively, a "TRANSFER"), without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. This prohibition against a Transfer includes, without limitation, (i) directly any subletting or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or assignment which would otherwise dispose of (including occur by gift, merger or operation of law) (collectively, “Transfer”)merger, or enter into any contractconsolidation, optionreorganization, derivative, hedging, swap, forward transfer or other agreement, understanding change of Tenant's corporate or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, proprietary structure; (ii) enter into an assignment or subletting to or by a receiver or trustee in any voting arrangementfederal or state bankruptcy, whether by proxyinsolvency, voting agreement or otherwise, with respect to any of the Subject Shares, other proceedings; (iii) grant any proxies the sale, assignment or powers transfer of attorney with respect to any all or substantially all of the Subject Sharesassets of Tenant, with or without specific assignment of Lease; (iv) agree to divest itself of any voting rights the change in the Subject Shares control in a partnership; or (v) commit or agree conversion of Tenant to take any a limited liability entity. If Tenant converts to a limited liability entity without obtaining the prior written consent of Landlord: (i) the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby conversion shall be null and void ab initio for purposes of the Lease, including the determination of all obligations and that liabilities of Tenant and its partners to Landlord; (ii) all partners of Tenant immediately prior to its conversion to a limited liability shall be fully liable, jointly and severally, for obligations of Tenant accruing under this Lease pre-conversion and post-conversion, and all members and other equity holders in Tenant post-conversion shall be fully liable for all obligations and liabilities of Tenant accruing under the Lease after the date such members and other equity holders are admitted to the limited liability entity as if such person or entity had become a general partner in a partnership; and (iii) Landlord shall have the option of declaring Tenant in default under this Lease. If Tenant requests Landlord's consent to any Transfer, then Tenant shall provide Landlord with a written description of all terms and conditions of the proposed Transfer, copies of the proposed documentation, and the following information about the proposed transferee: name and address; reasonably satisfactory information about its business and business history; its proposed use of the Premises; a copy of the proposed sublease or assignment agreement; banking, financial and other credit information; and general references sufficient to enable Landlord to determine the proposed transferee's creditworthiness and character. Landlord's consent to a Transfer shall not release Tenant from performing its obligations under this Lease, but rather Tenant's transferee shall assume all of Tenant's obligations under this Lease in a writing satisfactory to Landlord, and Tenant and its transferee shall be jointly and severally liable therefor. Landlord's consent to any Transfer shall not waive Landlord's rights as to any subsequent Transfer. While the Premises or any part thereof are subject to a Transfer, Landlord may collect directly from such transferee all rents or other sums relating to the Premises becoming due to Tenant or Landlord and apply such rents and other sums against the Rent and any other sums payable hereunder. If the aggregate rental, bonus or other consideration paid by a transferee for any such prohibited Transfer may space exceeds the sum of (y) Tenant's Rent to be paid to Landlord for such space during such period and should (z) Tenant's costs and expenses actually incurred in connection with such Transfer, including reasonable brokerage fees, reasonable costs of finishing or renovating the space affected and reasonable cash rental concessions, which costs and expenses are to be enjoined. If any involuntary Transfer of any amortized over the term of the Company Shares occurs Transfer, then fifty percent (including50%) of such excess shall be paid to Landlord within fifteen (15) days after such amount is earned by Tenant. Such arrearage amounts in the case of a sublease shall be calculated and adjusted (if necessary) on a Lease Year (or partial Lease Year) basis, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, and there shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect be no cumulative adjustment for the Term. The Company agrees that if Shareholder attempts Landlord shall have the right to audit Tenant's books and records relating to the Transfer, vote or provide . Tenant authorizes its transferees to make payments of rent and any other Person sums due and payable, directly to Landlord upon receipt of notice from Landlord to do so. Any attempted Transfer by Tenant in violation of the terms and covenants of this ARTICLE IX shall be void. In the event that Tenant requests that Landlord consider a sublease or assignment hereunder, Tenant shall pay (i) Landlord's reasonable and documented expenses, not to exceed Five Hundred and No/100 Dollars ($500.00) per transaction, actually incurred in connection with the authority consideration of such request, and (ii) all reasonable attorneys' fees and costs incurred by Landlord in connection with the consideration of such request or such sublease or assignment. Notwithstanding any provision to vote the contrary, Tenant may assign this Lease or sublet the Premises without Landlord's consent (i) to any corporation or other entity that controls, is controlled by or is under common control with Tenant; (ii) to any corporation or other entity resulting from a merger, acquisition, consolidation or reorganization of or with Tenant; (iii) in connection with the sale of all or substantially all of the Company Shares other assets of Tenant, so long as Tenant provides evidence to Landlord in writing that such assignment or sublease complies with the criteria set forth in (i), (ii) or (iii) above and provided the following conditions are met: (1) the net worth of the transferee is equal to or greater than the greater of Tenant's net worth on the date of this Lease, (2) if Tenant remains in strict compliance with this Agreementexistence as a separate legal entity following the transfer, the Company it shall not (x) permit any such Transfer on the Company’s books and recordsbe released from liability under this Lease, (y3) issue the transferee shall assume in a new certificate or instrument representing any writing delivered to Landlord all of Tenant's obligations under the Lease effective upon the consummation of the Company Shares or permit any book entries for any such Transfer with respect transfer, and (4) Tenant shall give written notice to any Company Shares Landlord of the proposed transfer at least fifteen (15) days in advance of the consummation thereof. Any transferee that are meets the criteria in uncertificated form or (z) record such vote, in each case, unless and until Shareholder this paragraph shall have complied with the terms of this Agreementhereinafter be referred to as a "PERMITTED TRANSFEREE".
Appears in 2 contracts
Samples: Lease (Texas Roadhouse, Inc.), Lease (Texas Roadhouse, Inc.)
Transfers. (a) Each Shareholder agrees to execute a customary lock-up agreement with the underwriters in connection with the IPO, provided that the duration of the lock-up period shall notnot exceed 180 days. In addition, each Shareholder agrees, other than as contemplated in the registration statement therefore, (i) directly or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect not to a Transfer of, any of its Securities in a manner that would not be permitted under the Company Shares, or any interest therein, to any Personterms of the Original Shareholders Agreement, (ii) enter into not to take any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any other action that would not be permitted under the terms of the Subject SharesOriginal Shareholders Agreement (or if action can only be taken with the consent or approval of one or more Persons, not to take any such action without obtaining the consent(s) or approval(s) of the Person(s) specified in the Original Shareholders Agreement), or (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree fail to take any action required to be taken by the Original Shareholders Agreement, in each of such cases (i), (ii) and (iii), prior to the earlier of (x) the consummation of the foregoing actionsIPO and (y) the date that is ten Business Days after the date of this Agreement. Shareholder agrees that any Transfer For the avoidance of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any doubt, the ten Business Day time period set forth in clause (y) of the Company Shares occurs immediately preceding sentence shall not expire before the ten Business Day time period set forth in Section 4.16.
(including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale b) Any and all rights and obligations under this Agreement that apply to a purchaser at Shareholder will apply with equal force to any creditor’s or court sale), the transferee Person to whom such Shareholder Transfers (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement) Securities, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue it will be a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect condition to any Company Shares Transfer of Securities otherwise permitted by this Agreement that are in uncertificated form or (z) record the Transferee execute an agreement by which the Transferee agrees to become a party to and be bound by this Agreement, and acknowledges that the Securities Transferred to such vote, in each case, unless and until Transferee by a Shareholder shall have complied with will be subject to the terms of this Agreement, unless such Transfer is made (i) pursuant to an offering registered under the Securities Act, or to the public through a broker, dealer or market-maker pursuant to Rule 144 promulgated thereunder, (ii) in a transaction that will result in the termination of this Agreement or (iii) by any Sponsor Holder to the limited partners or other equity owners of such Sponsor Holder.
(c) Any attempt by a Shareholder to Transfer any Securities not in compliance with this Agreement will be null and void and any such improper Transfer will not be registered, or otherwise recognized in the Corporation’s records. No Shareholder will enter into any transaction or series of transactions for the purpose or with the effect of, directly or indirectly, denying or impairing the rights or obligations of any other Person under this Agreement, and any such transaction will be null and void and, to the extent that such transaction requires any action by the Corporation, it will not be registered or otherwise recognized in the Corporation’s records or otherwise.
(d) For so long as the transfer restrictions set forth in this Section 2.1 remain in effect, each certificate or option representing a Security subject to such restrictions and owned by any Shareholder, if certificated, will (unless otherwise permitted by the provisions of this Section 2.1(d)) include one of the following legends, as applicable, in addition to any other legends required by applicable Law or agreement: THE OFFER AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AND VOTING AS SET FORTH IN A SHAREHOLDERS AGREEMENT, A COPY OF WHICH MAY BE OBTAINED FROM THE CORPORATION. THE OFFER AND SALE OF THIS OPTION AND THE SECURITIES REPRESENTED BY THIS OPTION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND THIS OPTION AND THE SECURITIES REPRESENTED BY THIS OPTION MAY NOT BE OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS OPTION AND THE SECURITIES REPRESENTED BY THIS OPTION ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AND VOTING AS SET FORTH IN A SHAREHOLDERS AGREEMENT, A COPY OF WHICH MAY BE OBTAINED FROM THE CORPORATION. If such Securities are not certificated, a similar notation will be made on the books and records of the Corporation. Any Shareholder may, upon providing evidence, including an opinion of counsel reasonably satisfactory to the Corporation that such Securities either are not “restricted securities” (as defined in Rule 144) or may be sold pursuant to Rule 144(b)(1), exchange the certificate representing such Securities for a new certificate that does not bear the first sentence of the applicable legend set forth in this Section 2.1(d) or remove such notation from the books and records of the Corporation. Upon termination or expiration of the provisions of this Agreement restricting the Transfer and voting of the Securities, any Shareholder may exchange its certificate(s) representing its Securities for a new certificate that does not bear the legend set forth in the second sentence of the applicable legend set forth in this Section 2.1(d) or such notation may be removed.
(e) In order to allow the Shareholders to fulfill any beneficial ownership reporting obligations they may have, if a Shareholder acquires or disposes of the registered or beneficial ownership (as such term is defined in Rule 13d-3 of the Exchange Act) of any Securities, such Shareholder shall, within two Business Days following consummation of such acquisition or disposition, deliver notice thereof to the Corporation, which the Corporation shall promptly, and in any event within two Business Days following receipt of such notice, forward to each other Shareholder.
Appears in 2 contracts
Samples: Shareholders Agreement (Regional Management Corp.), Shareholders Agreement (Regional Management Corp.)
Transfers. Shareholder shall notNotwithstanding any other provision of this Agreement or any other Sponsor Document, subject to the provisions of the Series Certificate Agreement regarding (i) directly or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose the delivery of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, an investor letter and (ii) enter into the requirement that any voting arrangementtransfer of a beneficial ownership interest in the Class B Certificates shall be made only in accordance with or subject to an exemption from, whether the Securities Act of 1933, as amended, the Sponsor and any transferee thereof shall be permitted to transfer any portion of its beneficial ownership interest in Class B Certificates (provided the Sponsor shall at all times maintain the Minimum Sponsor Interest). Any beneficial ownership interest in a Class B Certificate transferred, and all proceeds thereof, shall nonetheless remain Pledged Security Collateral subject to the security interest created by proxythis Agreement, voting agreement or otherwiseand each transferee shall be deemed to have agreed to each and every provision of this Agreement, including without limitation (a) the assignment and pledge to the Pledge Custodian and grant to the Pledge Custodian, for the benefit of Fxxxxxx Mac, of a continuing security interest in and a lien on, all of its right, title and interest in and to the Class B Certificates acquired and all proceeds thereof, pursuant to Section 8.1 and (b) the appointment and powers of the Pledge Custodian as collateral agent for Fxxxxxx Mac as set forth in this Article VIII. In addition, the Pledge Custodian shall have no duty to ascertain the identity of any transferee of a beneficial ownership interest in the Class B Certificates, and shall make all payments with respect to any of Class B Certificate that is permitted to be paid to the Subject Shares, (iii) grant any proxies Sponsor only to the Sponsor or powers of attorney a single entity designated by the Sponsor in accordance with respect the written instructions thereof. The Pledge Custodian shall be permitted to any or all of rely on and assume the Subject Shares, (iv) agree to divest itself accuracy of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementinstructions.
Appears in 2 contracts
Samples: Bond Exchange, Reimbursement, Pledge and Security Agreement (America First Multifamily Investors, L.P.), Bond Exchange, Reimbursement, Pledge and Security Agreement (America First Tax Exempt Investors Lp)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed Transfer. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, (a) Guarantor must continue to Control, and own, directly or indirectly, in the aggregate, at least a 51% legal and beneficial interest in, Borrower, and (b) Acadia Realty Trust must continue to Control, and own, directly or indirectly, at least a 20% legal and beneficial interest in, each of Guarantor and any Affiliated Manager.
(e) No consent to any assumption of the Loan shall occur on or before the date that is twelve (12) Payment Dates after the Completion of the Improvements. Thereafter, Lender’s consent to a Transfer of the Property and assumption of the Loan shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied for all Transfers other than those described in subsection (d) above:
(i) Borrower shall pay Lender at the time of such Transfer a transfer fee equal to one half of one percent (0.5%) of the outstanding principal balance of the Loan for the first Transfer and one percent (1.0%) of the outstanding principal balance of the Loan for each subsequent Transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate Net Worth and Liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell (including short sales)voluntary or involuntary, transfer, tender, assign, exchange, pledge, encumber made an assignment for the benefit of creditors or otherwise dispose taken advantage of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Sharesinsolvency act, or any interest thereinact for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to any PersonLender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(iiviii) enter into any voting arrangementTransferee, whether by proxy, voting agreement Transferee’s Principals and Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.46 and 5.2.10 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements and covenants reasonably required by Lender;
(x) Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Sharesratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(xi) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender;
(iiixii) grant any proxies or powers of attorney with respect Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty of Completion, the Guaranty of Recourse Carveouts and the Environmental Indemnity executed by Guarantor or execute replacement guaranties and environmental indemnity reasonably satisfactory to Lender;
(ivxiii) agree Borrower shall deliver, at its sole cost and expense, an endorsement to divest itself the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any voting rights additional exceptions or liens other than those contained in the Subject Shares or Title Policy issued on the date hereof and the Permitted Encumbrances; and
(vxiv) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby The Property shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, managed by a sale by Shareholder’s trustee in any bankruptcy, or a sale Qualified Manager pursuant to a purchaser at any creditor’s or court sale), Replacement Management Agreement. Immediately upon a Transfer to such Transferee and the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees satisfaction of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsabove requirements, liabilities the named Borrower and rights Guarantor herein shall be released from all liability under this Agreement, which shall continue in full force the Note, the Mortgage and effect for the Termother Loan Documents accruing after such Transfer. The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementwritten evidence thereof reasonably requested by Borrower.
Appears in 2 contracts
Samples: Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust)
Transfers. Shareholder shall not(a) Except as provided under Sections 8.01(b), (i) 8.02 and 8.03 of this Agreement, no Limited Partner may assign, pledge, sell or in any way directly or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledgedistribute, encumber or otherwise dispose of (including whether voluntarily or involuntarily) or otherwise grant a security interest in (each such act, a “Transfer”) any of its interest in the Partnership or in this Agreement, except with the unanimous consent of the Partners. Any attempted disposition of an interest in the Partnership or in this Agreement by gift, merger or operation a Limited Partner not made in accordance with this Section 8.01(a) shall be void and shall not be effective.
(b) The prohibitions of lawTransfers set forth in Section 8.01(a) shall not apply to the following Transfers (collectively, “TransferPermitted Transfers” and the transferee of a Permitted Transfer being a “Permitted Transferee”)): (i) the Transfer of interests in the Partnership by any Limited Partner among its respective Affiliates or Family Group, or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement the pledge or otherwise, with respect to any hypothecation of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights interests in the Subject Shares or (v) commit or agree to take Partnership by any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale Limited Partner to a purchaser at any creditor’s financial institution or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority in order to vote any of the Company Shares provide collateral security for a bona fide loan or other than in strict compliance with this Agreementfinancing from such financial institution or Person; provided, the Company shall not (x) permit any such Transfer on the Company’s books and recordshowever, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such votethat, in each case, unless (1) the Limited Partner shall inform the General Partner of such Transfer prior to effecting it and until Shareholder (2) prior to the completion of the Transfer, shall have complied executed documents, in form and substance satisfactory to the General Partner, assuming the obligations of the Limited Partner under this Agreement with respect to the Transferred interest in the Partnership.
(c) Any transferee of an interest in the Partnership pursuant to a Transfer in compliance with this Section 8.01 (i) shall become a substituted Partner hereunder upon the acceptance by the General Partner of a counterpart hereof executed by such transferee and the execution and delivery by such transferee of any other documentation that may be reasonably required by the General Partner to determine that the Transfer satisfies the requirements of this Section 8.01; (ii) shall have the same rights and responsibilities under this Agreement as its transferor, and (iii) shall succeed to the Capital Account of such transferor and the balances thereof (to the extent allocable to such interest). In the case of a Transfer by the General Partner of its entire interest in the Partnership pursuant to Section 8.01(b), the transferee shall be admitted as the General Partner hereunder immediately prior to the effective date of such Transfer and shall continue the business of the Partnership without dissolution, and such Transfer shall not be deemed an event of withdrawal of the transferring General Partner for purposes of the termination provisions set forth in Section 6.01.
(d) No Transfer of any interest in the Partnership will be allowed if such Transfer or the actions to be taken in connection with that Transfer would:
(i) result in a violation of any law, rule or regulation by the Partnership;
(ii) cause the termination or dissolution of the Partnership;
(iii) cause the Partnership to be classified other than as a partnership for Federal income tax purposes;
(iv) cause the Partnership to be classified as a “publicly traded partnership” within the meaning of Section 469(k)(2) of the Code or for the purposes of Section 512(c)(2) of the Code;
(v) result in a violation of the Securities Act;
(vi) require the Partnership or the General Partner to register as an investment company under the Investment Company Act;
(vii) require the Partnership or the General Partner to register as an investment adviser under the Investment Advisers Act; or
(viii) result in a termination of the Partnership for Federal or state income tax purposes.
(e) If a natural person Limited Partner dies or becomes incapacitated, then his or her Legal Representative will, upon execution of a counterpart of this Agreement, be substituted as a Limited Partner, subject to all the terms and conditions of this Agreement.
(f) Any Transfer of a Limited Partner’s interest otherwise permitted hereunder shall be made only upon (i) such Limited Partner taking all such actions and executing and delivering all such documents as may be reasonably requested by the General Partner in order to consummate the Transfer in accordance with this Agreement and (ii) receipt by the Partnership of a written opinion of counsel, in form and substance reasonably satisfactory to the General Partner, as to compliance with Section 8.01(d) and such other legal matters as the General Partner may reasonably request. The General Partner may waive, in whole or in part, the requirement to deliver an opinion pursuant to this Section 8.01(f).
(g) Any Limited Partner that requests or otherwise seeks to effect a Transfer of all or a portion of its interest in the Partnership hereby agrees to reimburse the Partnership, at the request of the General Partner, for any expenses reasonably incurred by the Partnership in connection with such Transfer, including the costs of seeking and obtaining the legal opinion required by Section 8.01(f) and any other legal, accounting and miscellaneous expenses (“Transfer Expenses”), whether or not such Transfer is consummated. At its election, and in any event the transferor has not reimbursed the Partnership for any Transfer Expenses incurred by the Partnership in preparing for or consummating a proposed or completed Transfer within 15 days after the General Partner has delivered to such Partner written demand for payment, the General Partner may seek reimbursement from the transferee of such interest (or portion thereof). If the transferee does not reimburse the Partnership for such Transfer Expenses within a reasonable time (or, in the case of a Transfer not consummated, the prospective transferor does not reimburse the Partnership within a reasonable time), the General Partner may charge the Capital Account related to such interest with such Transfer Expenses. For avoidance of doubt, Transfer Expenses shall include the additional accounting, tax preparation and other administrative expenses reasonably incurred (or to be incurred) by the Partnership in the case of a Transfer that results in tax basis adjustments to be made by the Partnership under Section 743 of the Code or related provisions. In the case of a Transfer that is expected to result in future expenses of the type described in the preceding sentence, the General Partner may estimate the amount of such expenses in good faith, and such estimate shall be final.
(h) If a Transfer has been proposed or attempted but the requirements of this Section 8.01 have not been satisfied, then the General Partner shall not admit the purported transferee as a substituted Limited Partner but, to the contrary, shall use its reasonable best efforts to ensure that the Partnership (i) continues to treat the transferor as the sole owner of the interest in the Partnership purportedly transferred, (ii) makes no distributions to the purported transferee and (iii) does not furnish to the purported transferee any tax or financial information regarding the Partnership. The General Partner shall use its reasonable best efforts to ensure that the Partnership does not otherwise treat the purported transferee as an owned of any interest in the Partnership (either legal or equitable), unless required by law to do so. The Partnership shall be entitled to seek injunctive relief to the fullest extent permitted by law, at the expense of the purported transferor, to prevent any such purported Transfer.
(i) If any Transfer results in multiple ownership of any Limited Partner’s interest in the Partnership, the General Partner may require one or more trustees or nominees to be designated as representing a portion of or the entire interest transferred for purposes of (i) receiving all notices which may be given, and all payments which may be made, under this Agreement and (ii) exercising all rights which the transferor as a Limited Partner has pursuant to the provisions of this Agreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (SWK Holdings Corp), Limited Partnership Agreement (SWK Holdings Corp)
Transfers. Shareholder Beginning on the date hereof until the earlier of (x) receipt of the Company Stockholder Approval and (y) the Termination Date, each Stockholder hereby covenants and agrees that, except as expressly contemplated by this Agreement, such Stockholder shall not, directly or indirectly, (i) directly tender any Covered Shares into any tender or indirectly exchange offer, sell (including short sales)ii) create or permit to exist any liens, other than as may be applicable under the Securities Act or other applicable securities Laws, on all or any portion of the Covered Shares, (iii) offer, sell, transfer, tender, assign, exchange, pledge, hypothecate, hedge, gift, loan, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), ) or enter into any contractContract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a the Transfer of, any of the Company SharesCovered Shares or beneficial ownership, voting power or any other interest therein, to any Personthereof or therein (including by operation of Law), (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iiiiv) grant any proxies or powers of attorney attorney, deposit any Covered Shares into a voting trust or enter into a voting agreement with respect to any Covered Shares that is inconsistent with this Agreement, (v) take any action that would reasonably be expected to prevent or all materially impair or materially delay the consummation of the Subject Shares, (iv) agree to divest itself of any voting rights in transactions contemplated by this Agreement or the Subject Shares Merger Agreement or (vvi) commit or agree to take any of the foregoing actions. Shareholder agrees Any Transfer in violation of this Section 3.2 shall be void ab initio. Notwithstanding anything to the contrary in this Agreement, any Stockholder may Transfer any or all of the Covered Shares, in accordance with applicable Law, (A) to such Stockholder’s controlled Affiliates, (B) to any Person by will or the laws of descent and distribution, (C) to any spouse, lineal descendants, siblings or parents of such Stockholder by gift which is made to achieve the estate planning objectives of such Stockholder, (D) to any trust or similar entity or any corporation, limited liability company or partnership (1) substantially all of the economic interests of which are held by or for the benefit of such Stockholder or its spouse, lineal descendants, siblings or parents and (2) which is organized to achieve the estate planning objectives of such Stockholder, (E) under any existing stock sale plan adopted in accordance with Rule 10b5-1(c) (Rule 10b5-1) under the Securities Exchange Act of 1934 for the sale of shares of Company Common Stock (a “10b5-1 Plan”), (F) to any charitable organization that is tax exempt under Section 501(c)(3) of the Code and (G) to satisfy any Tax liability incurred by such Stockholder in respect of vesting, exercise or settlement of Company Equity Awards held by Stockholder (any Transfer pursuant to any of Subject clauses (A) through (G) in accordance with the following proviso, a “Permitted Transfer”); provided, that, prior to and as a condition to the effectiveness of any such Transfer pursuant to the foregoing clause (A) through (D) or (F), each Person to whom any of such Covered Shares not permitted hereby or any interest in any of such Covered Shares is or may be transferred shall have executed and delivered to Parent a counterpart of this Agreement in a form reasonably acceptable to Parent pursuant to which such transferee shall be null bound by all of the terms and void ab initio and that any provisions hereof in which case such prohibited Transfer may and should transferee shall be enjoineddeemed a Stockholder hereunder. If any involuntary Transfer of any of the Company Covered Shares occurs shall occur (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court salesale or upon the death of such Stockholder pursuant to the terms of any trust or will of such Stockholder or by the applicable Laws of intestate succession), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Covered Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms valid termination of this Agreement.
Appears in 2 contracts
Samples: Voting Agreement (Gen Digital Inc.), Voting Agreement (Moneylion Inc.)
Transfers. Shareholder By delivery of this Agreement, Borrower acknowledges that the financial standing and managerial and operational ability of Borrower are substantial and material considerations to Lender in its agreement to make the Loan and that any encumbrance or transfer of an interest in any Asset or in Borrower whether direct or indirect, will materially impair Lender’s security under the Security Instrument. To induce Lender to make the Loan, Borrower agrees Borrower shall not effect a Transfer, either directly or indirectly, or by operation of law, without in each instance first obtaining Lender’s prior written consent, which consent may be withheld for any reason, or given upon such terms and conditions as Lender deems necessary or appropriate, all within Lender’s sole and absolute discretion, to the extent permitted by Applicable Law. Upon any Transfer made in violation of this Section 9.9 but subject to the cure rights contained in Section 11.1(g), without limitation on Lender’s other rights, Lender shall have the absolute right in its sole discretion, without demand or notice, to declare all sums, indebtedness and obligations secured by this Agreement and the other Loan Documents to be immediately due and payable (including the Yield Maintenance (as defined in the Note)), except to the extent that and in such particular circumstances where exercise of such right by Lender is prohibited by law. Any Transfer effected pursuant to a consent by Lender shall be subject to this Agreement and the other Loan Documents, and any direct transferee shall, as a condition of the effectiveness of any such consent and as a covenant of Borrower and such transferee, and in form and substance prescribed by Lender, assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower or any maker or guarantor (including any Asset Guarantor or Guarantor) from any liability thereunder. Notwithstanding anything to the contrary contained herein, the following shall not constitute a “Transfer” and are hereby expressly acknowledged and permitted by Lender:
(i) directly The transfer of any direct or indirectly offerindirect ownership interests in Guarantor, sell (including short sales)including, transferwithout limitation, tender, assign, exchange, pledge, encumber the transfer of any common or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, preferred stock; or
(ii) enter Any tenant lease of Property entered into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights Borrower in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied accordance with the terms and conditions of this Agreement.
Appears in 2 contracts
Samples: Loan Agreement (IMH Financial Corp), Loan Agreement (IMH Financial Corp)
Transfers. Shareholder shall not(a) Unless such action is permitted by the provisions of this Section 5.2.10, Borrower agrees that it will not (i) directly or indirectly offer, sell (including short sales), transfer, tendersell, assign, exchangemortgage, grant, pledge, encumber assign, grant options with respect to, transfer or otherwise dispose of its legal or beneficial interests in any Individual Property or the Collateral or any part thereof or permit Principal, Mortgage Borrower or Maryland Owner to do any of the foregoing other than pursuant to space leases permitted under, and entered into in accordance with, Section 5.1.20 hereof (including by gift, merger or operation Section 5.1.20 of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) the Mortgage Loan Agreement with respect to a Transfer of, any of the Company Shares, or any interest therein, to any PersonMortgage Borrower and Maryland Owner), (ii) enter into permit any voting arrangementowner, directly or indirectly, of an ownership interest in the Collateral or any Individual Property, to transfer or dispose of such interest, whether by proxytransfer of stock or other interest in a Restricted Party, voting agreement or otherwise, with respect to any of the Subject Shares, ; (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, incur Indebtedness (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect Indebtedness permitted pursuant to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement), or permit Mortgage Borrower or Maryland Borrower to incur Indebtedness (other than Indebtedness permitted pursuant to the terms of the Mortgage Loan Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Collateral, any Individual Property or any part thereof, (v) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise transfer or dispose of any direct or indirect ownership interest in any Restricted Party or permit any owner of an interest in a Restricted Party to do the same, or (vi) file, or permit Mortgage Borrower or Maryland Owner to file, a declaration of condominium with respect to any Individual Property (any of the foregoing transactions, a “Transfer”). For avoidance of doubt, except as expressly set forth in Section 5.2.10(d) below, no assumption of all or any portion of the Loan shall be permitted without Lender’s prior written consent, such consent to be granted or withheld in Lender’s sole and absolute discretion.
(b) For purposes hereof, a “Transfer” shall not include (i) any public issuance, sale or transfer of non-controlling interests in Inland Western Retail Real Estate Trust, Inc., (ii) transfer by devise or descent or by operation of law upon the death of a member or partner of Borrower, Mortgage Borrower, Principal or Maryland Owner, or (iii) the transfer of direct or indirect equity interests in Inland Equity Investors, LLC or in Inland Equity, LLC by the current holders thereof or their respective successors, transferees and assigns.
(c) Notwithstanding the provisions of this Section 5.2.10 to the contrary, Lender’s consent shall not be required in connection with one or a series of Transfers, of up to forty-nine percent (49%) of the stock, the partnership interests or the membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in the Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed Transfer. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, Indemnitor must continue to (i) Control each Restricted Party, and (ii) own, directly or indirectly, not less than fifty-one percent (51%) legal and beneficial interest in each Restricted Party. Notwithstanding anything contained in this Section 5.2.10(c), no Transfer of any direct ownership interests in Borrower, any Individual Mortgage Borrower, Maryland Owner, Principal or any Junior Mezzanine Borrower shall be permitted.
(d) At any time after the first (1st) anniversary of the first (1st) Payment Date, Lender shall not withhold its consent to a one (1) time Transfer of all of the Properties and in the equity of Mortgage Borrower, Principal and Maryland Owner that results in an assumption of the entire Loan and the entire Mortgage Loan, provided that Lender receives sixty (60) days’ prior written notice of such Transfer and further provided that the following additional conditions are satisfied:
(i) the New Mortgage Borrower and the New Mezzanine Borrower, (collectively the “Transferee”) shall each be a Special Purpose Entity which at the time -71- of such transfer will be in compliance with, and must be able to satisfy all of, the representations, warranties and covenants contained in Section 4.1.30, Section 4.1.36, Section 5.1.27 and Section 5.2.9 and corresponding provisions of the Mortgage Loan Agreement and which shall have assumed in writing (subject to the terms of Section 9.4 hereof) and agreed to comply with all the terms, covenants and conditions set forth in this Loan Agreement and the other Loan Documents and the Mortgage Loan Documents, as applicable, expressly including, without limitation the representations, warranties and covenants contained in Section 4.1.30, Section 4.1.35, Section 5.1.1 and Section 5.1.27 hereof, and corresponding provisions of the Mortgage Loan Agreement;
(ii) Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal, reduction or qualification of the ratings in effect immediately prior to such Transfer for the Securities, or any class thereof, issued in connection with a Securitization which are then outstanding;
(iii) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(iv) Transferee or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties, which expertise shall be reasonably determined by Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly by Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Without limiting the generality of Section 5.2.10(d)(i), New Mezzanine Borrower shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(viii) Each Individual Property shall be managed by a Qualifying Manager pursuant to a Replacement Management Agreement;
(ix) Transferee, Transferee’s Principals and Related Entities shall not have defaulted under its or their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(x) no Event of Default shall have occurred and be continuing and no Default or Event of Default shall otherwise occur as a result of such Transfer;
(xi) Borrower shall deliver, at its sole cost and expense, an endorsement to each existing UCC Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Collateral and naming New Mezzanine Borrowers as owner of the Collateral, which endorsement shall insure that, as of the date of the recording of the assumption agreement, shall not be subject to any additional exceptions or liens other than those contained in the relevant UCC Title Insurance Policy issued on the date hereof and the Permitted Encumbrances relating thereto;
(xii) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender, which Additional Insolvency Opinion may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives with respect to the proposed transaction, including, without limitation, Transferee;
(xiii) Borrower or Transferee, at its sole costs and expense, shall deliver to Lender a fraudulent conveyance opinion reflecting such Transfer, which fraudulent conveyance opinion may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives with respect to the proposed transaction, including, without limitation, Transferee;
(xiv) Transferee, at its sole cost and expense, shall deliver opinions regarding existence, authority and enforceability, which opinions may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives with respect to the proposed transaction;
(xv) Transferee and Transferee’s Principals shall deliver (1) all organizational documentation reasonably requested by Lender, which shall be reasonably acceptable to Lender, and (2) all certificates, agreements and covenants reasonably required by Lender;
(xvi) Prior to any release of Indemnitor, one (1) or more substitute indemnitors reasonably acceptable to Lender shall have assumed all of the liabilities and obligations of Indemnitor under the Indemnification Agreement executed by Indemnitor or execute a replacement guaranty reasonably satisfactory to Lender;
(xvii) if the Junior Mezzanine Loan is still outstanding, Junior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Junior Mezzanine Loan Documents with respect to the Transfer and assumption of the Junior Mezzanine Loan;
(xviii) Borrower shall have paid an assumption fee equal to one percent (1.0%) of the then outstanding principal balance of the Loan;
(xix) Borrower shall pay (or cause to be paid) any and all reasonable out-of-pocket costs actually incurred by Lender in connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements) and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (b) above; and
(xx) Mortgage Loan Borrower shall have complied with all terms and conditions set forth in the Mortgage Loan Documents with respect to the Transfer and the assumption of the Mortgage Loan. Lender shall approve or disapprove any proposed Transfer governed by this Section 5.2.10(d) within thirty (30) days of Lender’s receipt of a written notice from Borrower requesting Lender’s approval, provided such notice includes all information necessary to make such decision, and further provided that such written notice from Borrower shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.2.10(D) OF THE LOAN AGREEMENT, A RESPONSE IS REQUIRED WITHIN THIRTY (30) DAYS’ OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. If Lender fails to disapprove any proposed Transfer within such period, Borrower shall provide a second written notice requesting approval, which written notice shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.2.10(D) OF THE LOAN AGREEMENT, THE MATTER DESCRIBED HEREIN SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN FIFTEEN (15) BUSINESS DAYS OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. Thereafter, if Lender does not disapprove the proposed Transfer within said fifteen (15) Business Day period, Lender's consent to the proposed Transfer shall be deemed to have been given; provided, however, and notwithstanding the foregoing, no such consent to the proposed Transfer shall be deemed given unless and until Borrower shall have delivered confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal, reduction or qualification of the ratings in effect immediately prior to such Transfer for the Securities, or any class thereof, issued in connection with a Securitization which are then outstanding.
(e) Each of Mortgage Borrower and Maryland Owner, without the consent of Lender, may grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, parking, water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no such transfer, conveyance or encumbrance shall materially impair the utility and operation of the applicable Individual Property or materially adversely affect the value of such Individual Property or the Net Operating Income of such Individual Property.
(f) Notwithstanding anything contained in this Section 5.2.10 to the contrary, restrictions on Transfers set forth herein or in the Pledge Agreement shall not apply to the direct or indirect pledge by Junior Mezzanine Borrower of the ownership interests in Borrower as security for the Junior Mezzanine Loan pursuant to the Junior Mezzanine Loan Agreement.
(g) Borrower shall not consent to or permit a Transfer of the Properties by Mortgage Borrower as permitted under Sections 5.2.10(d) of the Mortgage Loan Agreement unless it obtains the prior consent of Lender. Lender shall consent to such a Transfer if the provisions of Section 5.2.10(d) are complied with.
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the creditworthiness and experience of Borrower 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 loan secured by the Mortgage, and that Lender will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt. Borrower shall not, not without Lender’s prior written consent and except as otherwise expressly provided in this Section 5.2.10 (i) directly or indirectly offer, sell (including short sales), transfer, tendersell, assign, exchangeconvey, mortgage, grant, pledge, encumber assign, grant options with respect to, transfer or otherwise dispose of its legal or beneficial interests in the Property or any part thereof other than pursuant to Leases permitted under, and entered into in accordance with, Section 5.1.20 hereof, (including ii) permit any owner, directly or indirectly, of an ownership interest the Property, to transfer or dispose of such interest, whether by gifttransfer of stock or other interest in a Restricted Party, merger or operation otherwise, (iii) incur Indebtedness (other than the Indebtedness permitted pursuant to the terms of lawthis Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Property or any part thereof, (collectivelyv) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise transfer or dispose of any direct or indirect ownership interest in any Restricted Party, or permit any owner of an interest in a Restricted Party to do the same, or (vi) file a declaration of condominium with respect to the Property (any of the foregoing transactions, a “Transfer”).
(b) At any time other than the period commencing thirty (30) days prior to a Securitization and ending thirty (30) days after a Securitization, Lender’s consent shall not be required in connection with one or enter into a series of Transfers, of up to forty-nine percent (49%) of the stock, limited partnership interests or membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in such Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed Transfer. In addition, at all times, Guarantor must continue to (i) Control each Restricted Party, and (ii) own, directly or indirectly, not less than fifty-one percent (51%) of the legal and beneficial interest in each Restricted Party.
(c) At any contracttime other than the period commencing thirty (30) days prior to a Securitization and ending thirty (30) days after a Securitization, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect Lender shall not withhold its consent to a Transfer of, any of the Company Sharesentire Property or all of the outstanding ownership interests in Borrower in a single transaction to one newly-formed Special Purpose Entity which shall be a wholly-owned subsidiary of IDRETI (“Permitted Affiliate Transferee”) which shall be approved by Lender in its reasonable discretion (“Permitted Affiliate Transfer”), or any interest therein, to any Personprovided (1) no Event of Default shall have occurred and be continuing, (ii2) enter into the creditworthiness of IDRETI, as applicable, has not deteriorated, in the sole discretion of Lender, from the Closing Date to the date of the proposed Transfer, and (3) Borrower shall have paid all reasonable and customary third party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer (but not any voting arrangementassumption or processing fee).
(d) At any time after other than during the period that is thirty (30) days prior to and thirty (30) days after a Securitization, whether Lender shall not withhold its consent to a Transfer of the Property and assumption of the Loan, provided that Lender receives thirty (30) days’ prior written notice of such Transfer and further provided that the following additional requirements are satisfied:
(I) THE PROPOSED TRANSFEREE OF THE PROPERTY SHALL BE A SPECIAL PURPOSE ENTITY (THE “TRANSFEREE”) WHICH AT THE TIME OF SUCH TRANSFER WILL BE IN COMPLIANCE WITH, AND MUST BE ABLE TO SATISFY ALL OF, THE REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN SECTION 4.1.30, SECTION 4.1.35, SECTION 5.1.23 AND SECTION 5.2.9 AND WHICH SHALL HAVE ASSUMED IN WRITING (SUBJECT TO THE TERMS OF SECTION 9.3 HEREOF) AND AGREED TO COMPLY WITH ALL THE TERMS, COVENANTS AND CONDITIONS SET FORTH IN THIS LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, EXPRESSLY INCLUDING, WITHOUT LIMITATION THE REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN SECTION 4.1.30, SECTION 4.1.35, SECTION 5.1.1 AND SECTION 5.1.23 HEREOF;
(II) BORROWER SHALL DELIVER CONFIRMATION IN WRITING FROM THE RATING AGENCIES THAT SUCH PROPOSED TRANSFER WILL NOT CAUSE A DOWNGRADING, WITHDRAWAL, REDUCTION OR QUALIFICATION OF THE RATINGS IN EFFECT IMMEDIATELY PRIOR TO SUCH TRANSFER FOR THE SECURITIES, OR ANY CLASS THEREOF, ISSUED IN CONNECTION WITH A SECURITIZATION WHICH ARE THEN OUTSTANDING;
(III) TRANSFEREE AND TRANSFEREE’S PRINCIPALS SHALL, AS OF THE DATE OF SUCH TRANSFER, HAVE AN AGGREGATE NET WORTH AND LIQUIDITY NOT WORSE THAN THE NET WORTH AND LIQUIDITY OF BORROWER AND ITS PRINCIPALS AS OF THE DATE HEREOF OR AN AGGREGATE NET WORTH AND LIQUIDITY OTHERWISE REASONABLY ACCEPTABLE TO LENDER;
(IV) TRANSFEREE OR TRANSFEREE’S PRINCIPALS MUST HAVE DEMONSTRATED EXPERTISE IN OWNING AND OPERATING PROPERTIES SIMILAR IN LOCATION, SIZE, CLASS AND OPERATION TO THE PROPERTY, WHICH EXPERTISE SHALL BE REASONABLY DETERMINED BY LENDER;
(V) TRANSFEREE, TRANSFEREE’S PRINCIPALS AND ALL OTHER ENTITIES WHICH MAY BE OWNED OR CONTROLLED DIRECTLY OR INDIRECTLY BY TRANSFEREE’S PRINCIPALS (“RELATED ENTITIES”) MUST NOT HAVE BEEN PARTY TO ANY BANKRUPTCY PROCEEDINGS, VOLUNTARY OR INVOLUNTARY, MADE AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS OR TAKEN ADVANTAGE OF ANY INSOLVENCY ACT, OR ANY ACT FOR THE BENEFIT OF DEBTORS WITHIN SEVEN (7) YEARS PRIOR TO THE DATE OF THE PROPOSED TRANSFER;
(VI) TRANSFEREE SHALL ASSUME ALL OF THE OBLIGATIONS OF BORROWER UNDER THE LOAN DOCUMENTS IN A MANNER SATISFACTORY TO LENDER IN ALL RESPECTS, INCLUDING, WITHOUT LIMITATION, BY ENTERING INTO AN ASSUMPTION AGREEMENT IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO LENDER;
(VII) THERE SHALL BE NO MATERIAL LITIGATION OR REGULATORY ACTION PENDING OR THREATENED AGAINST TRANSFEREE, TRANSFEREE’S PRINCIPALS OR RELATED ENTITIES WHICH IS NOT REASONABLY ACCEPTABLE TO LENDER;
(VIII) THE PROPERTY SHALL BE MANAGED BY A QUALIFIED MANAGER PURSUANT TO A REPLACEMENT MANAGEMENT AGREEMENT;
(IX) TRANSFEREE, TRANSFEREE’S PRINCIPALS AND RELATED ENTITIES SHALL NOT HAVE DEFAULTED UNDER ITS OR THEIR OBLIGATIONS WITH RESPECT TO ANY OTHER INDEBTEDNESS IN A MANNER WHICH IS NOT REASONABLY ACCEPTABLE TO LENDER;
(X) NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING AND NO DEFAULT OR EVENT OF DEFAULT SHALL OTHERWISE OCCUR AS A RESULT OF SUCH TRANSFER;
(XI) BORROWER SHALL DELIVER, AT ITS SOLE COST AND EXPENSE, AN ENDORSEMENT TO EACH EXISTING TITLE INSURANCE POLICY INSURING THE RELATED MORTGAGE, AS MODIFIED BY THE ASSUMPTION AGREEMENT, AS A VALID FIRST LIEN ON THE PROPERTY AND NAMING TRANSFEREE AS OWNER OF THE FEE ESTATE (OR LEASEHOLD ESTATE, AS APPLICABLE) OF THE PROPERTY, WHICH ENDORSEMENT SHALL INSURE THAT, AS OF THE DATE OF THE RECORDING OF THE ASSUMPTION AGREEMENT, SUCH PROPERTY SHALL NOT BE SUBJECT TO ANY ADDITIONAL EXCEPTIONS OR LIENS OTHER THAN THOSE CONTAINED IN SUCH TITLE INSURANCE POLICY ISSUED ON THE DATE HEREOF AND THE PERMITTED ENCUMBRANCES RELATING THERETO;
(XII) BORROWER OR TRANSFEREE, AT ITS SOLE COST AND EXPENSE, SHALL DELIVER TO LENDER AN ADDITIONAL INSOLVENCY OPINION (IF AN INSOLVENCY OPINION WAS ISSUED IN CONNECTION WITH THE CLOSING) REFLECTING SUCH TRANSFER SATISFACTORY IN FORM AND SUBSTANCE TO LENDER, WHICH ADDITIONAL INSOLVENCY OPINION MAY BE RELIED UPON BY LENDER, THE RATING AGENCIES AND THEIR RESPECTIVE COUNSEL, AGENTS AND REPRESENTATIVES WITH RESPECT TO THE PROPOSED TRANSACTION, INCLUDING, WITHOUT LIMITATION, TRANSFEREE;
(XIII) INTENTIONALLY OMITTED;
(XIV) TRANSFEREE, AT ITS SOLE COST AND EXPENSE, SHALL DELIVER OPINIONS REGARDING EXISTENCE, AUTHORITY AND ENFORCEABILITY, WHICH OPINIONS MAY BE RELIED UPON BY LENDER, THE RATING AGENCIES AND THEIR RESPECTIVE COUNSEL, AGENTS AND REPRESENTATIVES WITH RESPECT TO THE PROPOSED TRANSACTION;
(XV) TRANSFEREE AND TRANSFEREE’S PRINCIPALS SHALL DELIVER (1) ALL ORGANIZATIONAL DOCUMENTATION REASONABLY REQUESTED BY LENDER, WHICH SHALL BE REASONABLY ACCEPTABLE TO LENDER, AND (2) ALL CERTIFICATES, AGREEMENTS AND COVENANTS REASONABLY REQUIRED BY LENDER;
(XVI) PRIOR TO ANY RELEASE OF GUARANTOR, ONE (1) OR MORE SUBSTITUTE GUARANTORS REASONABLY ACCEPTABLE TO LENDER SHALL HAVE ASSUMED ALL OF THE LIABILITIES AND OBLIGATIONS OF GUARANTOR UNDER THE GUARANTY AND ENVIRONMENTAL INDEMNITY EXECUTED BY GUARANTOR OR EXECUTE A REPLACEMENT GUARANTY AND ENVIRONMENTAL INDEMNITY REASONABLY SATISFACTORY TO LENDER;
(XVII) BORROWER SHALL HAVE PAID AN ASSUMPTION FEE EQUAL TO ONE-HALF OF ONE PERCENT (0.5%) OF THE THEN OUTSTANDING PRINCIPAL BALANCE OF THE LOAN IN CONNECTION WITH THE FIRST SUCH TRANSFER, AND AN ASSUMPTION FEE EQUAL TO ONE PERCENT (1.0%) OF THE THEN OUTSTANDING PRINCIPAL BALANCE OF THE LOAN IN CONNECTION WITH EACH SUBSEQUENT TRANSFER, PROVIDED, HOWEVER, NO SUCH ASSUMPTION FEE SHALL BE PAYABLE IF THE TRANSFEREE IS WHOLLY OWNED BY AN IDENTIFIED AFFILIATE; AND
(XVIII) BORROWER SHALL PAY (OR CAUSE TO BE PAID) ANY AND ALL REASONABLE OUT-OF-POCKET COSTS ACTUALLY INCURRED BY LENDER IN CONNECTION WITH SUCH TRANSFER (INCLUDING, WITHOUT LIMITATION, LENDER’S REASONABLE COUNSEL FEES AND DISBURSEMENTS) AND ALL RECORDING FEES, TITLE INSURANCE PREMIUMS AND MORTGAGE AND INTANGIBLE TAXES AND THE FEES AND EXPENSES OF THE RATING AGENCIES (IF ANY) PURSUANT TO CLAUSE (B) ABOVE.
(e) Borrower, without the consent of Lender, may grant easements, restrictions, covenants, reservations and right of way in the ordinary course of business for access, parking, water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no such transfer, conveyance or encumbrance shall materially impair the utility and operation of the Property or materially adversely affect the value of such Property or the Net Operating Income of such Property. In connection with any transfer, conveyance or encumbrance permitted in the immediately preceding sentence, the Lender shall execute and deliver any instrument reasonably necessary or appropriate to evidence its consent to said action or to subordinate the Lien of the Mortgage to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by proxy, voting agreement or otherwise, the Lender of: (A) a copy of the instrument of transfer; and (B) an Officer’s Certificate stating with respect to any transfer described above, that such transfer does not materially impair the utility and operation of the Subject SharesProperty or materially reduce the value of such Property or the Net Operating Income of such Property. If Borrower shall receive any consideration in connection with any of said described transfers or conveyances, Borrower shall have the right to use any such proceeds in connection with any alterations performed in connection therewith, or required thereby, to the extent any such proceeds are not used in connection with alterations (iiior any such proceeds exceeds the amount required to perform the related alterations), Borrower shall immediately deposit such amount or the remainder thereof, as the case may be, into the Lockbox Account. The acquisition by IDRETI of any entity whether by merger, stock purchase, asset purchase or any other manner shall not be considered a “Transfer” for purposes hereof so long as: (a) grant IDRETI is the surviving entity following such a transaction; (b) the net worth of IDRETI shall equal or exceed the net worth of IDRETI immediately prior to such a transaction, and (c) IDRETI shall retain management and control.
(f) Except as set forth herein, no sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer all or any proxies part of the Property, 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 powers any increased risk of attorney with respect default hereunder in order to declare the Debt immediately due and payable upon Borrower’s sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property without Lender’s consent if such consent is required herein. 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 Lender has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or all transfer of the Subject SharesProperty.
(g) Lender’s consent to any sale, (iv) agree conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to divest itself be a waiver of any voting rights Lender’s right to require such consent in the Subject Shares future. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or (v) commit or agree to take any transfer of the foregoing actions. Shareholder agrees that any Transfer Property made in contravention of Subject Shares not permitted hereby this Section shall be null and void ab initio and that any such prohibited Transfer may of no force or effect.
(h) Borrower agrees to bear and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs shall pay or reimburse Lender on demand for all reasonable expenses (including, but not limited towithout limitation, a sale Lender’s actual out-of-pocket attorneys’ fees and disbursements, title search costs, rating agency fees and title insurance endorsement premiums) incurred by Shareholder’s trustee Lender in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person connection with the authority to vote any review, approval or disapproval, and documentation of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and recordssale, (y) issue a new certificate conveyance, alienation, mortgage, encumbrance, pledge or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementtransfer.
Appears in 1 contract
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Except as set froth in Section 5.2.10(d) below, without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party (collectively, a “Transfer”), other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20. Nothing herein shall be deemed to prohibit or enter into restrict the Transfer of ownership interests in the Guarantor.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any contractpart thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, option, derivative, hedging, swap, forward assignment or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the Company Sharespartnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest thereinor the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any Personmerger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer: (i) the sale or transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; provided, however, no such sales or transfers shall result in the change of voting control in the Restricted Party, and as a condition to each such sale or transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed sale or transfer, (ii) enter the sale or transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such sales or transfers shall result in the change of voting control in the Restricted Party, and as a condition to each such sale or transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed sale or transfer and (iii) the sale, transfer or issuance of stock in Xxxxxxxxx Corporation (the “Traded Entity”) provided such stock is listed on the New York Stock Exchange or such other nationally recognized stock exchange. In addition, at all times, DEM Mairoll, LLC, a Delaware limited liability company, must continue to control the day to day operations of the Borrower and own, directly or indirectly, at least a 51% interest in Borrower. Furthermore, at all times, The Xxxxxxxxx Corporation must continue to control DEM Mairoll, LLC, Principal and Affiliated Manager and own, directly or indirectly, at least a 51% interest in DEM Mairoll, LLC, Principal and Affiliated Manager.
(e) Notwithstanding anything to the contrary contained in this Section 5.2.10 or elsewhere in the Loan Documents, holders of interests in a Restricted Party (or holders of interests in any entity directly or indirectly holding an interest in a Restricted Party) as of the date of this Agreement (the “Interest Holders”) shall have the right to Transfer their interest in such Restricted Party (or any entity directly or indirectly holding an interest in such Restricted Party) to any Interest Holder without having to obtain the prior written consent of the Lender and such Transfers shall not be deemed an Event of Default hereunder; provided, however, that:
(i) after taking into account any voting arrangementprior Transfers pursuant to this Section 5.2.10, whether by proxy, voting agreement to the proposed transferee or otherwise, with respect to no such Transfer (or series of Transfers) shall result in (x) the proposed transferee or any affiliate thereof, owning in the aggregate (directly, indirectly or beneficially) more than 49% of the Subject Sharesinterests in Borrower, or (y) a Transfer in the aggregate (directly, indirectly or beneficially) of more than 49% of the interests in Borrower as of the date hereof, unless Lender is furnished an opinion, in form and substance and from counsel reasonably satisfactory to Lender, substantially similar to the Insolvency Opinion which discusses the substantive non-consolidation of Borrower with the proposed transferee in the event of a bankruptcy, insolvency or similar proceeding relating to the proposed transferee;
(ii) after such Transfer of interest, DEM Mairoll, LLC shall control Borrower and the day to day operations at the Property and the Property shall continue to be managed by Manager or another Qualified Manager;
(iii) grant any proxies or powers Borrower shall give Lender notice of attorney such Transfer together with respect copies of all instruments effecting such transfer not less than thirty (30) days prior to any or all the date of the Subject Shares, such Transfer;
(iv) agree to divest itself no Event of any voting rights in the Subject Shares or Default shall have occurred and remain uncured; and
(v) commit the legal and financial structure of Borrower and its shareholders, partners or agree members, and the single purpose nature and bankruptcy remoteness of Borrower and its shareholders, partners or members after such transfer, shall reasonably satisfy Lender’s then current applicable underwriting criteria and requirements, including, without limitation, the requirement, at the request of Lender, to take any deliver written confirmations from the Rating Agencies that such Transfer or series of Transfers will not result in a qualification, downgrade or withdrawal of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any then applicable ratings of the Company Shares occurs Securities.
(includingf) No consent to any assumption of the Loan shall occur on or before the first anniversary of the first Payment Date. Thereafter, but not limited to, Lender reserves the right to condition the consent required hereunder upon (a) a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale)modification of the terms hereof, the transferee (which termNote, as used herein, shall include any the Mortgage or the other Loan Documents to evidence the Transfer and all transferees and subsequent transferees assumption of the initial transfereeLoan; (b) shall take and hold such Company Shares subject to all an assumption of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company Note, the Mortgage and the other Loan Documents as so modified by the proposed transferee, subject to the provisions of Section 9.4 hereof; (c) payment of all reasonable and customary fees and expenses incurred in connection with such Transfer including, without limitation, the reasonable and customary cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses or required legal opinions; (d) the payment of a non-refundable $5,000 application fee and the payment of an assumption fee equal to one-half of one percent (0.5%) of the outstanding principal balance of the Loan for any assumption of the Loan occurring subsequent to the first such assumption (i.e., such assumption fee shall not (x) permit any be required for the first such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any assumption of the Company Shares Loan); (e) the delivery of a nonconsolidation opinion reflecting the proposed transfer satisfactory in form and substance to Lender; (f) the proposed transferee’s continued compliance with the representations and covenants set forth in Section 4.1.30 and Section 5.2.9 hereof; (g) the delivery of evidence satisfactory to Lender that the single purpose nature and bankruptcy remoteness of Borrower, its shareholders, partners or permit members, as the case may be, following such transfers are in accordance with the then current standards of Lender and the Rating Agencies; (h) prior to any book entries for release of the Guarantor, a substitute guarantor reasonably acceptable to Lender shall have assumed the Guaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender; (i) if required by Lender, confirmation in writing from the Rating Agencies to the effect that such transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any applicable Securitization; or (j) such Transfer other reasonable and customary conditions as Lender shall promptly communicate to Borrower in writing, including, without limitation, the creditworthiness, reputation and qualifications of the transferee with respect to the Loan and the Property. Lender shall not be required to demonstrate any Company Shares that are actual impairment of its security or any increased risk of default hereunder in uncertificated form order to declare the Debt immediately due and payable upon a Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(zg) record such voteNothing in this Article V shall apply with respect to the Area of Taking (as hereinafter defined).
(h) Notwithstanding anything to the contrary contained herein, in each caseat no time while any Obligation to Lender is still outstanding shall Xxxxxxx Xxxxxxx (currently the chief executive officer of Guarantor) be elected to, unless and until Shareholder shall appointed to, act as or have complied with any position on the terms board of this Agreementdirectors/managers, as applicable, of the Borrower.
Appears in 1 contract
Samples: Loan Agreement (Fairchild Corp)
Transfers. Shareholder (a) Borrower shall not, (i) directly or indirectly offerand shall not permit Mortgage Borrower to, sell (including short sales)sell, transferconvey, tendermortgage, grant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein (other than in connection with a Condemnation) or the Collateral or any part thereof or any legal or beneficial interest therein or permit a Sale or Pledge of an interest in any Restricted Party (collectively, a “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on pursuant to Sections 5.2.10(c) and 5.2.11 hereof and Sections 5.2.10(c) and 5.2.11 of the Company’s books and recordsMortgage Loan Agreement, (y) issue a new certificate or instrument representing any Leases of space in the Improvements to tenants in accordance with the provisions of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or Loan Documents and of the Mortgage Loan Documents and (z) record in connection with the creation of, and enforcement of the remedies available under, the Other Mezzanine Loans, without (i) the prior written consent of Lender and (ii) if a Securitization has occurred, delivery to Lender of written confirmation from the Rating Agencies that the Transfer will not result in the downgrade, withdrawal or qualification of the then current ratings assigned to any Securities or the proposed rating of any Securities.
(b) A Transfer shall include, but not be limited to: (i) an installment sales agreement wherein Mortgage Borrower agrees to sell the Property or any part thereof for a price to be paid in installments or wherein Borrower agrees to sell the Collateral or any part thereof for a price to be paid in installments; (ii) an agreement by Mortgage 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, Mortgage Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such votecorporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interests or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non managing membership interests or the creation or issuance of new non managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.18 hereof.
(c) Notwithstanding the provisions of Sections 5.2.10(a) and (b) (but subject to the requirements of subsections (d) and (e)), the following transfers/pledges shall not be deemed to be a Transfer (and shall not require the consent or confirmation of Lender or any Rating Agency): (i) a transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party (other than a direct transfer of direct interests of Borrower in Mortgage Borrower (or, if any Other Mezzanine Loan is outstanding, of any Other Mezzanine Borrower) or of a Restricted Party itself; (ii) the Sale or Pledge, in one or a series of transactions, of the direct or indirect stock, partnership, membership or other equity interests (as applicable) in a Restricted Party other than a direct transfer of the direct interests of Borrower in Mortgage Borrower or, if any Other Mezzanine Loan is outstanding, of any Other Mezzanine Borrower; provided, however, that such transfers shall not result in a violation of the terms and provisions of Sections 5.2.10(d) and (e) hereof, and Borrower will endeavor to deliver to Lender written notice within thirty (30) days following any such transfer contemplated by this Section 5.2.10(c), provided further, however, Borrower shall not be required to provide notice to Lender of the transfer of the direct or indirect interests in Broadway Partners Parallel Fund B III, L.P., Broadway Partners Parallel Fund P III, L.P. or Broadway Partners Real Estate Fund III, L.P. (including a transfer by the limited partners in such funds); or (iii) a transfer of the stock or membership or partnership interest in a Restricted Party other than a direct transfer of the direct interests of Borrower in Mortgage Borrower or, if any Other Mezzanine Loan is outstanding, of any Other Mezzanine Borrower by a member, partner or shareholder of a Restricted Party or a Restricted Party itself to an Immediate Family Member of such member, partner or shareholder, or to a trust for the benefit of an Immediate Family Member of such member, partner or shareholder.
(d) Notwithstanding anything to the contrary contained in this Section 5.2.10, at all times, either (i) Guarantor must own not less than 10% of the direct or indirect interests in Borrower and control Borrower and Guarantor must be directly or indirectly controlled by Broadway Partners Fund GP III, LLC or (ii) Borrower must be controlled directly or indirectly by a Qualified Fund Transferee.
(e) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer in violation of this Section 5.2.10. This provision shall apply to every Transfer regardless of whether voluntary or not (other than in connection with a Condemnation), or whether or not Lender has consented to any previous Transfer. Notwithstanding anything to the contrary contained in this Section 5.2.10, (a) no transfer (whether or not such transfer shall constitute a Transfer) shall be made, to the best of Borrower’s knowledge and after review of the Annex to the Executive Order and any amendments or additions thereto, to any Prohibited Person and (b) in the event any transfer (whether or not such transfer shall constitute a Transfer) results in any Person owning in excess of forty-nine percent (49%) of the ownership interest in Borrower or Principal (directly or indirectly), Borrower shall, prior to such transfer, deliver an updated Insolvency Opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.
(f) Notwithstanding anything to the contrary set forth herein, the pledge and foreclosure (or assignment in lieu thereof) of the Collateral (as defined in each case, unless and until Shareholder shall have complied Other Mezzanine Loan Agreement) in accordance with the terms applicable Other Mezzanine Loan Documents shall not constitute an Event of Default under this Agreement.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Piedmont Office Realty Trust, Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members and (if Borrower is a trust) beneficial owners, as applicable, and principals of Borrower in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than, in either case, to the extent that such Transfer constitutes a Permitted Transfer. Any Transfer made without Lender’s prior written consent (to the extent that such consent is required pursuant to this Section 5.2.10) shall be null and void. For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, the Sale or Pledge of a direct or indirect interest in an Excluded Entity shall not constitute a Transfer and may be effectuated by the applicable Person without the consent of, or any notice to, Lender.
(c) A Transfer shall include, but not be limited to, (i) directly an installment sales agreement wherein Borrower agrees to sell the Property or indirectly offerany part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space Tenant thereunder or a sale, sell assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (including short salesiii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10 but subject to the final two sentences of this Section 5.2.10(d), transferLender’s consent shall not be required in connection with one or a series of Transfers, tenderof not more than forty-nine percent (49%) of the stock, assignlimited partnership interests or membership interests (provided that, exchangein the case of any multi-member Restricted Party, pledge, encumber or otherwise dispose excluding any interests of (including by gift, merger or operation of lawthe managing member) (collectivelyas the case may be) in a Restricted Party; provided, “Transfer”)however, or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementi) with respect to no such Transfer shall result in the change of Control in a Transfer of, any of the Company Shares, or any interest therein, to any PersonRestricted Party, (ii) enter as a condition to each such Transfer, Lender shall receive not less than thirty (30) days’ prior written notice of such proposed Transfer, and (iii) if after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender and, following a Securitization, acceptable to the Rating Agencies. Notwithstanding anything contained in this Section 5.2.10(d), no Transfer of any direct ownership interests in Borrower or any SPE Constituent Entity shall be permitted. In addition, at all times, Guarantor must continue to Control Borrower and each SPE Constituent Entity and own, directly or indirectly, at least a fifty-one percent (51%) legal and beneficial interest in Borrower and each SPE Constituent Entity.
(e) No Transfer of the Property and assumption of the Loan shall occur during the period that is sixty (60) days prior to a Securitization or the period that is sixty (60) days after a Securitization. Otherwise, Lender’s consent to a one (1) time Transfer of the Property and assumption of the entire Loan by the proposed Transferee (the “Transferee”) shall be given in Lender’s sole discretion provided that Lender receives sixty (60) days’ prior written notice of such Transfer and no Event of Default has occurred and is continuing at the time Lender receives such notice and at the time such Transfer is consummated. In determining whether to consent to any proposed Transfer pursuant to this Section 5.2.10(e), Lender may require or consider, without limitation, the following actions and matters:
(i) Borrower shall pay Lender a fee equal to one-half percent (0.5%) of the outstanding principal balance of the Loan at the time of such Transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) Transferee or Transferee’s Sponsors must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Sponsors shall, as of the date of such Transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Sponsors and all other entities which may be owned or Controlled directly or indirectly by Transferee’s Sponsors (“Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Sponsors or any voting arrangementRelated Entities which is not reasonably acceptable to Lender;
(viii) Transferee, whether by proxy, voting agreement Transferee’s Sponsors and any Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s SPE Constituent Entities must be able to make all of the Subject Sharesrepresentations set forth in Sections 4.1.30, 4.1.35, and 4.1.38, and perform all of the covenants set forth in Sections 5.1.27, 5.1.29 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s SPE Constituent Entities shall deliver (iiiA) grant any proxies or powers all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender, and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) Following a Securitization, if required by Lender, Transferee shall be approved by the Rating Agencies rating the Loan, which approval, if required by Lender, shall take the form of attorney a Rating Agency Confirmation with respect to such Transfer;
(xi) Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty and the Environmental Indemnity or executed a replacement guaranty and/or environmental indemnity reasonably satisfactory to Lender;
(xii) Borrower shall deliver, (iv) agree at its sole cost and expense, an endorsement to divest itself the Title Insurance Policy, as modified by the assumption agreement, confirming the Lien of the Mortgage as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsements shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any voting rights additional exceptions or Liens other than those contained in the Subject Shares or Title Insurance Policy issued on the Closing Date and the Permitted Encumbrances;
(vxiii) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby The Property shall be null and void ab initio and that any such prohibited managed by Qualified Manager (and, if the Qualified Manager managing the Property prior to the Transfer may and should be enjoined. If any involuntary Transfer of any of is being replaced, the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale replacement Qualified Manager shall manage the Property pursuant to a purchaser Replacement Management Agreement); and
(xiv) Borrower or Transferee, at any creditor’s or court saleits sole cost and expense, shall deliver to Lender (A) an Additional Insolvency Opinion in respect of such Transfer satisfactory in form and substance to Lender and (B) a fraudulent conveyance opinion in respect of such Transfer, each of which opinions may be relied upon by Lender and the Rating Agencies with respect to the proposed Transfer. Immediately upon the consummation of a Transfer pursuant to this Section 5.2.10(e) (provided that Lender has consented thereto in accordance with the foregoing), the transferee (which term, as used herein, Borrower and Guarantor shall include any and be released from all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights liability under this Agreement, which shall continue in full force the Note, the Mortgage and effect for the Termother Loan Documents accruing after the date of such Transfer (other than to the extent such liability is expressly stated herein to survive). The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with written evidence thereof if the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company same is reasonably requested by Borrower.
(f) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon the consummation of a purported Transfer that is prohibited (xand as such, null and void) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect pursuant to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementSection 5.2.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Properties.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10 , Borrower shall not, and shall not permit any Restricted Party do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Properties or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20, (B) Permitted Transfers, and (C) subject to Section 5.1.23 above, any issuance, sale, pledge or transfer of non-controlling interests in Xxxx Credit Property Trust III, Inc.
(c) Subject to the exclusions in Section 5.2.10(b), a Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Properties or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of an Individual 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer, and provided, further, all outstanding partnership interests in Guarantor shall at all times be owned, directly or indirectly, by Xxxx Credit Property Trust III, Inc. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, Xxxx Credit Property Trust III, Inc. must continue to Control Borrower, Guarantor and Manager and own, directly or indirectly, at least a 51% legal and beneficial interest in Borrower, Guarantor and Manager.
(e) No Transfer of the Properties and assumption of the Loan, or Transfer of any direct interest in any Individual Borrower shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. Otherwise, Lender’s consent to a Transfer of the Properties and assumption of the Loan or Transfer of one hundred percent (100%) of the outstanding membership or partnership interests in Borrower shall not be unreasonably withheld provided that Lender receives not less than sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay or cause to be paid to Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such Transfer, unless the applicable Transfer is a Transfer to an Identified Affiliate that is a Xxxx sponsored entity, in which case no transfer fee shall be required;
(ii) Borrower shall pay or cause to be paid any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell (including short sales)voluntary or involuntary, transfer, tender, assign, exchange, pledge, encumber made an assignment for the benefit of creditors or otherwise dispose taken advantage of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Sharesinsolvency act, or any interest thereinact for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall ratify or assume (subject to Section 9.3 hereof) all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to any PersonLender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(iiviii) enter into any voting arrangementTransferee, whether by proxy, voting agreement Transferee’s Principals and Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.23 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender, provided that such certificates, agreements and covenants shall not materially increase the obligations of Borrower under the Loan Documents or materially decrease the rights of Borrower under the Loan Documents;
(x) If required by Lender, Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a qualification, reduction, downgrade or withdrawal of the Subject Sharesratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(xi) Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender;
(xii) Borrower shall deliver, at its sole cost and expense, an endorsement to the Title Insurance Policies, as modified by the assumption agreement, as valid first liens on the Properties and naming the Transferee as owner of the Properties, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Properties shall not be subject to any additional exceptions or liens other than those contained in the Title Insurance Policies issued on the date hereof and the Permitted Encumbrances;
(xiii) The Properties shall be managed by a Qualified Manager pursuant to a Replacement Management Agreement; and
(xiv) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender. Immediately upon a Transfer to such Transferee and the satisfaction of all of the above requirements, the named Borrower and Guarantor herein shall be released from all liability under this Agreement, the Note, the Mortgages and the other Loan Documents accruing after such Transfer. The foregoing release shall be effective upon the date of such Transfer, but Lender agrees to provide written evidence thereof reasonably requested by Borrower.
(f) No Transfer of any direct interest in a Principal or a manager of an Individual Borrower or of a Principal shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. Otherwise, Lender’s consent to a Transfer of one hundred percent (100%) of the outstanding membership interests in a Principal or a manager of an Individual Borrower or of a Principal shall not be unreasonably withheld provided that Lender receives not less than sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) The Transferee shall be, or shall be owned and controlled by, an Identified Affiliate;
(ii) Borrower shall pay or cause to be paid any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below), provided that no transfer fee shall be required;
(iii) grant The Transferee or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly by Transferee’s Principals (“Related Entities”) must not have been party to any proxies bankruptcy proceedings, voluntary or powers involuntary, made an assignment for the benefit of attorney creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall ratify all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(viii) Transferee, Transferee’s Principals and Related Entities shall not have defaulted under its or their obligations with respect to any or other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.23 and 5.2.9 of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall continue in full force be reasonably satisfactory to Lender and effect for the Term. The Company agrees (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender, provided that if Shareholder attempts to Transfersuch certificates, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company agreements and covenants shall not materially increase the obligations of Borrower under the Loan Documents or materially decrease the rights of Borrower under the Loan Documents;
(x) permit any If required by Lender, Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer on the Company’s books and recordswill not result in a qualification, (y) issue a new certificate reduction, downgrade or instrument representing any withdrawal of the Company Shares ratings in effect immediately prior to such assumption or permit transfer for the Securities or any book entries for any class thereof issued in connection with a Securitization which are then outstanding;
(xi) Intentionally omitted;
(xii) Intentionally omitted;
(xiii) The Properties shall be continue to be managed by a Qualified Manager pursuant to the Management Agreement or a Replacement Management Agreement; and
(xiv) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer with respect satisfactory in form and substance to Lender.
(g) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementprevious Transfer.
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party or any assignment of the Operating Lease in violation of this Agreement, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20 and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, the following shall not be deemed a Transfer: the Sale or Pledge in one or a series of transactions, of the direct or indirect equity interests in Borrower or direct or indirect interests in any Restricted Party; provided, that, (i) after giving effect to such Sale or Pledge, (A) BREP VI and/or Strategic (I) shall own not less than fifty-one percent (51%) of the direct or indirect legal, economic and beneficial interests in Borrower, in the aggregate and (II) shall Control Borrower, or (B) (I) Strategic shall own not less than 36.3747% of the direct or indirect legal, economic and beneficial interest in Borrower and (II) an Approved BREP Transferee shall own the remaining direct or indirect, legal, economic and beneficial interests in Borrower, (ii) Lender shall receive notice of any Sale or Pledge described in this Section 5.2.10(d) not less than thirty (30) days following the consummation thereof (but the failure to deliver any such notice shall not cause the applicable Sale or Pledge to be a Transfer and shall not constitute an Event of Default unless such failure continues for ten (10) Business Days following notice of such failure from Lender), (iii) no Sale or Pledge of any direct interest in any Borrower or Operating Lessee shall be permitted, (iv) for so long as the Mezzanine B Loan shall remain outstanding, no such Sale or Pledge of any direct interests in Mezzanine A Borrower shall be permitted, (v) for so long as the Loan or any Mezzanine Loan shall remain outstanding, (A) no pledge or other encumbrance of any direct interests in any Restricted Pledge Party shall be permitted (other than the pledges securing the Loan, the Mezzanine A Loan or the Mezzanine B Loan), and except that a pledge of the direct ownership interests in the most upper-tier Restricted Pledge Party shall be permitted if such pledge directly or indirectly offersecures indebtedness that is also directly or indirectly secured by substantial assets other than the Property and the IP Collateral; and (B) no Restricted Pledge Party shall issue preferred equity that has the characteristics of mezzanine debt (such as a fixed maturity date, sell (including short salesregular payments of interest, a fixed rate of return and rights of the equity holder to demand repayment of its investment), transferand (vi) none of Borrower, tenderOperating Lessee, assignOperating Lessee GP or North Beach Company shall fail to be a Special Purpose Entity by reason of such Sale or Pledge. If after giving effect to any such Sale or Pledge, exchangemore than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, pledgeBorrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Approved Rating Agencies. Notwithstanding anything to the contrary contained in this Agreement, encumber no notice to, or consent of, Lender shall be required in connection with any Sale or Pledge of direct or indirect interests in any Excluded Entity.
(e) No Transfer of the Property and assumption of the Loan shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. A Transfer of the Property or 100% of the legal or beneficial ownership interests therein or in Borrower and assumption of the entire Loan not otherwise dispose permitted by Section 5.2.10(d) to a Qualified Transferee shall be permitted without Lender’s consent (a “Permitted Assumption”); provided that Lender receives thirty (30) days prior written notice of such Transfer and no Event of Default has occurred and is continuing at the time such Permitted Assumption is consummated, and further provided that the following additional requirements are satisfied:
(including i) Borrower shall pay Lender a transfer fee equal to Two Hundred Thousand and No/100 Dollars ($200,000.00).
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Permitted Assumption (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Approved Rating Agencies pursuant to clause (x) below);
(iii) Intentionally Omitted;
(iv) Intentionally Omitted;
(v) Qualified Transferee and Qualified Transferee’s Principals must not have been the subject of any Bankruptcy Action within seven (7) years prior to the date of the proposed Transfer;
(vi) With respect to a Transfer of the Property, Qualified Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by giftentering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation relating to the creditworthiness or reputation of Qualified Transferee, merger Qualified Transferee’s Principals and all other entities which may be owned or operation of law) Controlled directly or indirectly by Qualified Transferee’s Principals (collectively, “TransferRelated Entities”), or enter into regulatory action pending or threatened against Qualified Transferee, Qualified Transferee’s Principals or any contractRelated Entity;
(viii) Intentionally omitted;
(ix) Qualified Transferee must be able to satisfy all representations and covenants in Section 4.1.30 hereof (or in the event of a transfer of 100% of the equity interests in Borrower, optionBorrower shall continue to satisfy all representations and covenants in Section 4.1.30), derivativeand in all cases Qualified Transferee and Qualified Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.35, hedging5.1.23 and 5.2.9 of this Agreement, swapno Default or Event of Default shall otherwise occur as a result of such Transfer, forward and Qualified Transferee shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and, following a Securitization, satisfactory to the Approved Rating Agencies and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) If required by Lender, following or other agreementin connection with a Securitization, understanding or other arrangement (including any profit sharing arrangement) Qualified Transferee shall be approved by the Approved Rating Agencies, which approval, if required by Lender, shall take the form of a Rating Agency Confirmation with respect to such Permitted Assumption; provided that a written waiver or acknowledgment from one or more of the Approved Rating Agencies indicating its decision not to review the Permitted Assumption for which the Rating Agency Confirmation is sought shall be deemed to satisfy the required for the Rating Agency Confirmation with respect to such Approved Rating Agency.
(xi) Guarantor shall be released from the Guaranty for all liability accruing after the date of a Transfer of, any (A) so long as one (1) or more substitute guarantors is a Qualified Transferee (excluding clause (iv) or (v) of the Company Sharesdefinition thereof) or is otherwise acceptable to Lender in its sole discretion and such substitute guarantor has assumed all of the liabilities and obligations of Guarantor under the Guaranty or has executed a replacement guaranty satisfactory to Lender in its sole discretion, in each case covering all liability accruing after the date of such assumption or execution and (B) Borrower has delivered to Lender customary legal opinions relating to authorization and enforceability of the additional guaranty contemplated above, substantially similar in form and substance to the opinions delivered to Lender on the Closing Date relating to the Guaranty, or any interest thereinotherwise in form and substance reasonably acceptable to Lender in its sole discretion, including, to any Personthe extent the Guarantor being released was included in the Insolvency Opinion delivered at closing, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, an Additional Insolvency Opinion with respect to any replacement guarantor.
(xii) If the Permitted Assumption is accomplished by deed or conveyance of the Subject SharesProperty rather than by assignment of all of a Restricted Party’s interests in Borrower, (iii) grant any proxies or powers Borrower shall deliver, at its sole cost and expense, an endorsement to the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Qualified Transferee as owner of attorney with respect the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any additional exceptions or liens other than those contained in the Title Policy issued on the date hereof and the Permitted Encumbrances;
(xiii) The Property shall be managed by Qualified Manager pursuant to a Replacement Management Agreement;
(xiv) Borrower or Qualified Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender; and
(xv) Borrower shall have obtained, or caused Mezzanine Borrower to obtain the most junior Mezzanine Lender’s prior written consent to such Permitted Assumption, which consent shall not be unreasonably withheld, conditioned or delayed. Immediately upon a Transfer to such Qualified Transferee and the satisfaction of all of the Subject Sharesabove requirements, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby named Borrower and Guarantor herein shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and released from all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights liability under this Agreement, which shall continue in full force the Note, the Mortgage and effect the other Loan Documents for the Termacts or omissions occurring after such Transfer. The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote but Lender agrees to provide written evidence thereof reasonably requested by Borrower.
(f) Lender shall not be required to demonstrate any actual impairment of its security or provide any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(g) Notwithstanding anything to the contrary contained herein or in any other Person Loan Document, to the extent either BREP Guarantor or Strategic (but not both) Transfers one hundred percent (100%) of its interests in Borrower and each Restricted Party in accordance with this Section 5.2.10 to (I) a third party unaffiliated with the authority to vote any remaining Guarantor or (II) the remaining Guarantor (such that either BREP Guarantor or Strategic is the sole owner of 100% of the Company Shares other than interests in strict compliance with this AgreementBorrower and each Restricted Party), the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such votethen, in each case, unless and until Shareholder the Guarantor Transferring its interests shall have complied with be released from the terms Guaranty for all liability accruing after the date of this Agreementsuch Transfer.
Appears in 1 contract
Transfers. Shareholder (a) Each Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if either Borrower is a trust) beneficial owners in owning and operating properties such as the Property, as applicable, in agreeing to make the Loan, and will continue to rely on such Borrower's ownership of its Property as a means of maintaining the value of such Property as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Each Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should such Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property, as applicable,.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, neither Borrower shall, and neither Borrower shall notpermit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledgegrant a security interest in, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party (collectively, “a "Transfer”"), other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein such Borrower agrees to sell its Property or enter into any contractpart thereof for a price to be paid in installments; (ii) an agreement by such Borrower leasing all or a substantial part of its Property for other than actual occupancy by a space tenant thereunder or a sale, option, derivative, hedging, swap, forward assignment or other agreementtransfer of, understanding or the grant of a security interest in, such Borrower's right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation's stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer: (i) the Sale or Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; provided, however, no such Sale or Pledge shall result in the change of voting control in the Restricted Party, and as a condition to each such Sale or Pledge, Lender shall receive not less than thirty (30) days prior notice of such proposed Sale or Pledge, (ii) the Sale or Pledge, in one or a series of transactions, of the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Sale or Pledge shall result in the change of voting control in the Restricted Party, (iii) the Sale or Pledge of stock in Xxxxxxx Properties, Inc. (the "Traded Entity"), provided such stock is listed on the New York Stock Exchange or such other nationally recognized stock exchange, or any Sale or Pledge or other arrangement (including any profit sharing arrangement) transaction that would otherwise constitute a transfer hereunder with respect to a Transfer ofPerson in its capacity solely as the holder of Traded Equity (and in no other capacity), any and (iv) the adjustment of partnership units held by partners in Principal to reflect redemptions pertaining to the limited partner interests in Principal. In addition, at all times, Xxxxxxx Properties, Inc. must continue to, directly or indirectly, control (subject only to customary reservations of rights in favor of other partners or members to approve the sale and/or refinancing of all or substantially all of the Company Sharesentity's assets and other major decisions) Borrowers, Guarantor and Affiliated Manager and own, directly or any indirectly, at least a 51% interest thereinin Borrower, Guarantor and Affiliated Manager.
(e) Lender shall not withhold its consent to any Persona Transfer of either Property to a Permitted Transferee (including, without limitation, an Affiliate of Borrower that is a Permitted Transferee) provided that (i) no Event of Default shall have occurred and remain uncured; (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect the Permitted Transferee shall have executed and delivered to any Lender a modification of the Subject Sharesterms hereof, the Note, the Mortgage or the other Loan Documents in form and substance acceptable to Lender; (iii) grant any proxies or powers the Permitted Transferee shall have executed and delivered to Lender an assumption of attorney with respect this Agreement, the Note, the Mortgage and the other Loan Documents as so modified by the Permitted Transferee in form and substance acceptable to any or all Lender, evidencing such Permitted Transferee's agreement to abide and be bound by the terms of the Subject SharesNote, this Agreement and the other Loan Documents, subject to the provisions of Section 10.4 hereof; (iv) agree to divest itself Lender shall have received payment of all of out-of-pocket fees and expenses incurred in connection with such transfer including, without limitation, all of Lender's out-of-pocket expenses in connection with the approval of such transfer, the cost of any voting rights in the Subject Shares third party reports, reasonable legal fees and expenses, Rating Agency fees and expenses or required legal opinions; (v) commit or agree Lender shall have received payment of a non-refundable $5,000 application fee; (vi) Lender shall have received payment of an assumption fee (the "Assumption Fee") equal to take any 0.50% of the foregoing actions. Shareholder agrees Outstanding Principal Balance on the date of such transfer or assumption for any transfer or assumption of the Loan, provided however, that the Assumption Fee shall not be applicable to the first transfer or assumption following the Closing Date; (vii) the Permitted Transferee shall have delivered to Lender a nonconsolidation opinion reflecting the proposed transfer satisfactory in form and substance to Lender, in its sole discretion, and, in the case of an Transfer to a non-Institutional Investor, the Rating Agencies in their sole discretion; (viii) Lender shall have received satisfactory evidence of the Permitted Transferee's continued compliance with the representations and covenants set forth in Section 4.1.30 and Section 5.2.9 hereof; (ix) Lender shall have received satisfactory evidence that the single purpose nature and bankruptcy remoteness of the Permitted Transferee, and as applicable, its shareholders, partners or members, as the case may be, following such transfers are in accordance with the then current standards of Lender and the Rating Agencies; (x) prior to any release of the Guarantor, a substitute guarantor reasonably acceptable to Lender shall have assumed the Guaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender (and, upon the effective date of such assumption or replacement guaranty, the Guarantor will be released); and (xi) if required by Lender, confirmation in writing from the Rating Agencies to the effect that such transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any applicable Securitization; provided that notwithstanding the foregoing, no such Rating Agency confirmation shall be required in connection with a Transfer to an Institutional Investor.
(f) Lender shall not withhold its consent to a Transfer of Subject Shares not permitted hereby the membership interests in Borrowers by NSHE to Principal, provided that (i) no Event of Default shall be null have occurred and void ab initio remain uncured; (ii) the following documents are delivered to Lender pursuant to the Qualified Exchange Accommodation Agreement: (A) an assumption and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer acknowledgement of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue the Note, the Mortgage and the other Loan Documents evidencing Principal's agreement to cause Borrowers to abide and be bound by the terms of the Note, this Agreement and the other Loan Documents, (B) a joinder of Guarantor affirming that the Guaranty and the Environmental Indemnity remain in full force and effect for the Term. The Company agrees effect, (C) an Officer's Certificate confirming that if Shareholder attempts to Transfer, vote or provide neither Borrower nor Lender is in default of any other Person with the authority to vote of its obligations under any of the Company Shares other than Loan Documents and that no defenses, offsets or counterclaims exist under the Loan Documents, (D) Lender shall have received payment of all of fees and expenses incurred in strict connection with such transfer including, without limitation, all of Lender's out-of-pocket expenses in connection with the review and/or approval of such transfer, the cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses or required legal opinions; (E) an Additional Insolvency Opinion, in form and substance reasonably satisfactory to Lender and the Rating Agencies, if facts or circumstances stated or assumed in the Insolvency Opinion have changed so that the facts stated and/or assumptions made therein are no longer correct); (F) Lender shall have received satisfactory evidence of each Borrower's continued compliance with this Agreementthe representations and covenants set forth in Section 4.1.30 and Section 5.2.9 hereof; (G) Lender shall have received satisfactory evidence that the single purpose nature and bankruptcy remoteness of the Borrowers, and as applicable, its shareholders, partners or members, as the case may be, following such transfers are in accordance with the then current standards of Lender and the Rating Agencies; and (H) if required by Lender due to changes in facts and circumstances, confirmation in writing from the Rating Agencies to the effect that such transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any applicable Securitization.
(g) Lender hereby consents to a pledge of the direct or indirect interests in Principal or in another Person(s) owning a direct or indirect interest in either Borrower (it being understood that pledges of direct interests in either Borrower shall not be permitted), provided that the following conditions are satisfied (i) such pledge is made to an Institutional Investor, including an Institutional Investor acting as agent for a group of lenders, that is not an Affiliate of Principal or Guarantor; (ii) Principal or such other Person(s) whose interests are pledged owns substantial assets in addition to its direct or indirect equity interests in either Borrower; and (iii) any such consent will apply only to the making of such pledge in Principal or such other Person(s) and the acceptance thereof by such Institutional Investor, including an Institutional Investor acting as agent for a group of lenders, and whatever rights such Institutional Investor may have in connection with such pledge, including but not limited to the right to foreclose on, or otherwise take action on, the Company shall not (x) permit any such Transfer on pledged interests, will remain subject to the Company’s books and records, (y) issue a new certificate or instrument representing any provisions of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms Section 5.2.10 of this Agreement.
(h) 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 Obligations immediately due and payable upon a transfer without Lender's consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer of the Property.
Appears in 1 contract
Transfers. Shareholder (a) Borrowers acknowledge that Lender has examined and relied on the experience of Borrowers and their general partners, members, principals and (if any Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Properties and in owning intellectual property such as the IP, in agreeing to make the Loan, and will continue to rely on Borrowers’ ownership of the Properties and the IP as a means of maintaining the value of the Properties and the IP as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrowers acknowledge that Lender has a valid interest in maintaining the value of the Properties and the IP so as to ensure that, should Borrowers default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Properties and the IP. Without the prior consent of Lender, which may be granted or denied in its sole and absolute discretion, and except to the extent otherwise set forth in this Section 5.2.10, Borrowers shall not, and shall not permit any Transfer Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangelicense, pledgegrant options with respect to, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) any Property or any part thereof or any legal or beneficial interest therein or any IP or any part thereof or any legal or beneficial interest therein, or (collectivelyii) permit a Sale or Pledge of any interest in any Transfer Restricted Party (any of the actions in the foregoing clauses (i) or (ii), a “Transfer”), other than, notwithstanding anything to the contrary contained in this Section 5.2.10, (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof, (B) the granting of the Subordinate Mortgage to the Subordinate Mortgage Lender, provided that the exercise of any remedies under the Subordinate Mortgage shall be limited by the terms of the Mortgage Standstill Agreement and any exercise of remedies not permitted by or enter into which are in violation of the Mortgage Standstill Agreement shall be deemed to be a prohibited Transfer hereunder, (C) Permitted Encumbrances and Permitted IP Encumbrances, (D) the transfer of indirect ownership interests in any contractBorrower(s) in order to create one or more new mezzanine borrowers for any New Mezzanine Loan as contemplated hereunder and (E) a BREF Two Permitted Transfer; provided, optionhowever, derivativethat in the case of each of the foregoing clauses (A) – (E), hedgingsuch Transfer shall only be permitted hereunder if it does not violate any Legal Requirements, swapincluding specifically, forward but without limitation, any Gaming Laws, or suspend or terminate any liquor license applicable to a Property. Lender will consider a request from Borrower to consent to a Sale of the IP separate and apart from the Properties, provided however, that Lender’s consent to any such Sale may be granted or denied in its sole and absolute discretion.
(b) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein any Borrower agrees to sell a Property or any part thereof or the IP or any part thereof for a price to be paid in installments; (ii) an agreement by any Borrower leasing all or a substantial part of a Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other agreementtransfer of, understanding or the grant of a security interest in, any Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Transfer Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Transfer Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation, admission or addition of a general partner or the Sale or Pledge of the general partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Transfer Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation, admission or addition of a managing member or non- member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing or managing membership interests or the creation or issuance of new non-managing or managing membership interests; (vi) if a Transfer Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Transfer Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of Resort Manager, Gaming Operator or Liquor Manager (including, without limitation, an Affiliated Manager) other arrangement than in accordance with Section 5.1.22 hereof.
(including any profit sharing arrangementc) with With respect to a any Transfer ofpermitted under this Section 5.2.10 or otherwise consented to by Lender, Borrower shall pay all fees and expenses incurred by Lender in connection with such Transfer, including, without limitation, the cost of any third party reports, reasonable legal fees and expenses, Rating Agency fees and expenses and required legal opinions.
(d) Notwithstanding anything to the contrary set forth in this Agreement or in any of the Company Sharesother Loan Documents, or any interest thereinBorrowers expressly acknowledge and agree, to any Personon behalf of themselves and the other Transfer Restricted Parties, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares or Guarantor Transfer stated to be permitted hereunder or thereunder shall only be permitted if it does not permitted hereby shall be null and void ab initio and that violate any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (includingLegal Requirements, including specifically, but not limited towithout limitation, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementGaming Laws.
Appears in 1 contract
Samples: Loan Agreement (Bref Hr, LLC)
Transfers. Shareholder Except as permitted pursuant to the following paragraph, until the Forbearance Termination Date, each Consenting Holder agrees that it shall not, (i) not directly or indirectly offersell, sell (including short sales)loan, assign, transfer, tenderhypothecate, assign, exchange, pledge, encumber tender or otherwise dispose of (including by giftany of the foregoing, merger or operation of law) (collectively, a “Transfer”), to any person (other than to (i) a Consenting Holder or (ii) to its affiliates or its or their controlled or managed funds, accounts, or investment vehicles, solely to the extent such person is or becomes party to this Agreement (clause (ii), an “Affiliated Holder”)), in whole or in part, its right, title, or interest in or to any of their Notes, or grant any proxies, deposit any of its Notes, as applicable, into a voting trust, or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of its Notes, as applicable. Notwithstanding the Subject Sharesforegoing, and subject to terms and conditions of the Notes Documents, any Consenting Holder may Transfer its right, title, or interest in or to any Notes to Arrayed Notes Acquisition Corp., a Delaware corporation (the “Buyer”), if on the date of such Transfer, the Buyer delivers to the Company a Joinder substantially in the form attached hereto as Exhibit A signed by the Buyer. Upon compliance with the requirements of this Section 4 and the Notes Documents, (iiix) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby transferee shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer deemed a Consenting Holder for all purposes of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue the transferor shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement to the extent of such transferred rights and obligations; provided that a new certificate transferor shall remain a Consenting Holder and shall continue to be bound by this Agreement to the extent it is the holder (or instrument representing investment advisor or manager to one or more holders) of any Notes. Any Transfer of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares Notes that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied does not comply with the terms of and procedures set forth in this AgreementSection 4 and the Notes Documents shall be deemed void ab initio.
Appears in 1 contract
Samples: Forbearance Agreement (Velo3D, Inc.)
Transfers. Shareholder (a) Xxxxxxxx acknowledges that Xxxxxx has examined and relied on the experience of Borrower and its stockholders, general partners, members and (if Borrower is a trust) beneficial owners, as applicable, and principals of Borrower in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Xxxxxx has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Xxxxxx can recover the Debt by a sale of the Properties.
(b) Except (i) to the extent otherwise set forth in this Section 5.2.10, (ii) with respect to the release of one or more Individual Properties or any portion thereof (and related collateral) in accordance with this Agreement and (iii) to the extent such Transfer constitutes a Permitted Transfer or Permitted Debt, without the prior written consent of Lender, Borrower shall notnot and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (x) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant purchase options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein, (y) permit a Sale or Pledge of an interest in any Restricted Party or (z) Borrower entering into, or causing the Property to be subject to, any PACE Debt. Any Transfer made without Xxxxxx’s prior written consent (to the extent that such consent is required pursuant to this Section 5.2.10) shall be null and void. Notwithstanding anything to the contrary contained herein, Xxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with any Transfer that is permitted hereunder, including, without limitation, any Permitted Transfer, Permitted Assumption, Controlling Interest Transfer or Public Sale or the replacement of any Guarantor or Ancillary Guarantor in connection therewith that is consummated in accordance with the terms of this Agreement and the terms of the Guaranty or Ancillary Guaranty, as applicable.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell an Individual Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or substantially all of an Individual Property to a third party 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, Xxxxxxxx’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any Division, merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership, any Division, merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any Division, merger or consolidation or the change, removal, resignation or addition of a member or a non‑member manager (other than an Independent Director or Independent Manager that is a springing member in accordance with the terms and conditions hereof) or the Sale or Pledge of the membership interest of a member (other than an Independent Director or Independent Manager that is a springing member in accordance with the terms and conditions hereof) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of membership interests or the creation or issuance of new membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10 the following Transfers shall not require any notice to Lender (unless Borrower is required to deliver any Additional Insolvency Opinion or satisfy any “know your customer” compliance screening as expressly required below) or the consent of Lender or the payment of any transfer fee:
(i) The Sale or Pledge, in one or a series of Transfers, of the direct or indirect equity interests in Borrower or direct or indirect interests in any Restricted Party; provided, that, (A) after giving effect to such Sale or Pledge (and in the case of a Sale or Pledge that is a pledge for security purposes otherwise permitted hereunder, any subsequent foreclosure thereon (other than a Pledge Foreclosure)), one or more Approved Control Party(ies) (x) shall individually or collectively, directly or indirectly, own the applicable Required Ownership Interest, and (y) shall individually or collectively, directly or indirectly, Control Borrower and Mezzanine Borrower, (B) intentionally omitted, (C) intentionally omitted, (D) no Individual Borrower or SPE Constituent Entity shall fail to be a Special Purpose Entity by reason of such Sale or Pledge, (E) for so long as the Loan or any Mezzanine Loan shall remain outstanding (I) no pledge of any direct interests in any Restricted Pledge Party shall be permitted (other than pledges securing the Loan or a New Mezzanine Loan), except that a pledge of the direct ownership interests in any Restricted Pledge Party (other than pledges of the direct ownership interests in Borrower (or, if any Mezzanine Loan is outstanding, any Mezzanine Borrower)) shall be permitted if such pledge directly or indirectly offersecures indebtedness that is also directly or indirectly secured by substantial assets other than the Properties and (II) no Restricted Pledge Party shall issue preferred equity that is substantially similar to mezzanine debt (such as preferred equity which has a fixed maturity date, sell pledged ownership interests as security and rights of the equity holder to demand repayment of its investment on such maturity date) and (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementF) with respect to any transferee that, as a Transfer ofresult of such Transfer, any will hold a twenty percent (20%) or greater direct or indirect interest in, or Control, Borrower (and such transferee owned less than twenty percent (20%) of the Company Sharesdirect or indirect interest in Borrower or did not Control Borrower immediately prior to such Transfer), Lender shall receive notice of such transfer (provided, however, the failure to provide such notice shall not constitute an Event of Default) and shall receive KYC Searches with respect to such transferee. Notwithstanding anything to the contrary contained in the Loan Documents, no notice to or consent of Lender shall be required in connection with (i) any foreclosure of any pledge of an indirect equity interest therein, to any Person, in Borrower or (ii) enter into any voting arrangement, whether the exercise of remedies or acquisition of Control by proxy, voting agreement a provider of preferred equity or otherwise, with respect debt to any an indirect owner of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such voteBorrower, in each case, unless that is permitted by this Agreement (a “Pledge Foreclosure”) that may or may not result in a change of Control of Borrower and until Shareholder no assumption fee shall be payable in connection therewith; provided that (x) the foreclosing party or the party acquiring Control of Borrower or exercising remedies is an Eligible Assignee that is able to remake the applicable representations set forth in Section 4.1.35 and is able to comply with Borrowers’ covenants set forth in Section 5.1.27 and (y) Lender shall receive notice of such transfer (provided, however, the failure to provide such notice shall not constitute an Event of Default) and shall have complied the right to receive the KYC Searches with respect to any Person that holds a twenty percent (20%) or greater direct or indirect interest in, or Controls, Borrower following such Pledge Foreclosure (and such transferee owned less than twenty percent (20%) of the terms direct or indirect interest in Borrower or did not Control Borrower immediately prior to such Pledge Foreclosure). If after giving effect to any such sale, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in Borrower and/or any SPE Constituent Entity are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in Borrower and/or such SPE Constituent Entity, as applicable, as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender and, following a Rated Securitization, the Rating Agencies. Notwithstanding anything to the contrary contained in this Agreement., (x) no notice to, or consent of, Lender shall be required in connection with any Sale or Pledge of direct or indirect interests in any Excluded Entity or by and among any Excluded Entity and (y) subject to sub-clause (I) above, no Restricted Pledge Party (other than Borrower or a New Mezzanine Borrower) shall be restricted from any Sale or Pledge of its direct or indirect assets; provided such direct or indirect assets are not encumbered (or required to be encumbered) by the Loan or the Mezzanine Loan. In connection with a Controlling Interest Transfer or any other Transfer (including, for the avoidance of doubt, without limitation, a Pledge Foreclosure), the result of which is that Guarantor or any Ancillary Guarantor, as applicable, no longer owns a direct or indirect interest in or is no longer an Affiliate of Borrower (individually or collectively as the context requires, the “Exiting Guarantor”), Exiting Guarantor shall be released as a guarantor under the (I) Guaranty for any acts occurring from and after such Transfer; provided that a Guaranty Assumption occurs with respect
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Transfers. Shareholder shall not(a) Borrower acknowledges that Administrative Agent and Lender have examined and relied on the experience of Borrower and its stockholders, general partners, members and (if Borrower is a trust) beneficial owners, as applicable, and principals of Borrower in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Administrative Agent and Lender have a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Administrative Agent on behalf of Xxxxxx can recover the Debt by a sale of the Properties.
(b) Except (i) directly or indirectly offerto the extent otherwise set forth in this Section 5.2.10, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementii) with respect to the release of one or more Individual Properties or any portion thereof (and related collateral) in accordance with this Agreement and (iii) to the extent such Transfer constitutes a Permitted Transfer ofor Permitted Debt, without the prior written consent of Lender, Borrower shall not and shall not permit any Restricted Party to do any of the Company Sharesfollowing (collectively, a “Transfer”): (x) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant purchase options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein, to (y) permit a Sale or Pledge of an interest in any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares Restricted Party or (vz) commit Borrower entering into, or agree causing the Property to take be subject to, any of PACE Debt. Any Transfer made without Xxxxxx’s prior written consent (to the foregoing actions. Shareholder agrees extent that any Transfer of Subject Shares not permitted hereby such consent is required pursuant to this Section 5.2.10) shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementvoid.
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property. Notwithstanding the foregoing, for purposes hereof, a “Transfer” shall not include Permitted Transfers.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20 and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non managing membership interests or the creation or issuance of new non managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. In addition, at all times, TNP must continue to Control Borrower and Manager and own, directly or indirectly, at least a 51% legal and beneficial interest in Borrower and Manager.
(e) No Transfer of the Property and assumption of the Loan shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. Otherwise, Lender’s consent to a one (1) time Transfer of the Property and assumption of the Loan shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell (including short sales)voluntary or involuntary, transfer, tender, assign, exchange, pledge, encumber made an assignment for the benefit of creditors or otherwise dispose taken advantage of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Sharesinsolvency act, or any interest thereinact for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to any PersonLender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(iiviii) enter into any voting arrangementTransferee, whether by proxy, voting agreement Transferee’s Principals and Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.23 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) If required by Lender, Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Shares, ratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(iiixi) grant any proxies or powers of attorney with respect Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender;
(xii) Borrower shall deliver, (iv) agree at its sole cost and expense, an endorsement to divest itself the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any voting rights additional exceptions or liens other than those contained in the Subject Shares or Title Policy issued on the date hereof and the Permitted Encumbrances; and
(vxiii) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby The Property shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale managed by Shareholder’s trustee in any bankruptcy, or a sale Qualified Manager pursuant to a purchaser at any creditor’s or court sale), Replacement Management Agreement. Immediately upon a Transfer to such Transferee and the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees satisfaction of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsabove requirements, liabilities the named Borrower and rights Guarantor herein shall be released from all liability under this Agreement, which shall continue in full force the Note, the Mortgage and effect for the Termother Loan Documents accruing after such Transfer. The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company written evidence thereof reasonably requested by Borrower.
(f) Lender shall not (x) permit be required to demonstrate any such actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer on the Companywithout Lender’s books and recordsconsent. This provision shall apply to every Transfer regardless of whether voluntary or not, (y) issue a new certificate or instrument representing any of the Company Shares whether or permit any book entries for any such Transfer with respect not Lender has consented to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementprevious Transfer.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.11, Borrower shall not, and shall not permit any Restricted Party do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof. 103
(d) Notwithstanding the provisions of this Section 5.2.11, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed Transfer. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, (a) Guarantor must continue to Control, and own, directly or indirectly, in the aggregate, at least a 51% legal and beneficial interest in, Borrower, and (b) Acadia Realty Trust must continue to Control, and own, directly or indirectly, at least a 20% legal and beneficial interest in, each of Guarantor and any Affiliated Manager.
(e) No consent to any assumption of the Loan shall occur on or before the date that is twelve (12) Payment Dates after the Completion of the Improvements. Thereafter, Lender’s consent to a Transfer of the Property and assumption of the Loan shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied for all Transfers other than those described in subsection (d) above:
(i) Borrower shall pay Lender at the time of such Transfer a transfer fee equal to one half of one percent (0.5%) of the outstanding principal balance of the Loan for the first Transfer and one percent (1.0%) of the outstanding principal balance of the Loan for each subsequent Transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate Net Worth and Liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell (including short sales)104 voluntary or involuntary, transfer, tender, assign, exchange, pledge, encumber made an assignment for the benefit of creditors or otherwise dispose taken advantage of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Sharesinsolvency act, or any interest thereinact for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to any PersonLender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(iiviii) enter into any voting arrangementTransferee, whether by proxy, voting agreement Transferee’s Principals and Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.46 and 5.2.10 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements and covenants reasonably required by Lender;
(x) Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Sharesratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(xi) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender;
(iiixii) grant any proxies or powers of attorney with respect Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty of Completion, the Guaranty of Recourse Carveouts and the Environmental Indemnity executed by Guarantor or execute replacement guaranties and environmental indemnity reasonably satisfactory to Lender;
(ivxiii) agree Borrower shall deliver, at its sole cost and expense, an endorsement to divest itself the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the 105 recording of the assumption agreement, the Property shall not be subject to any voting rights additional exceptions or liens other than those contained in the Subject Shares or Title Policy issued on the date hereof and the Permitted Encumbrances; and
(vxiv) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby The Property shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, managed by a sale by Shareholder’s trustee in any bankruptcy, or a sale Qualified Manager pursuant to a purchaser at any creditor’s or court sale), Replacement Management Agreement. Immediately upon a Transfer to such Transferee and the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees satisfaction of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsabove requirements, liabilities the named Borrower and rights Guarantor herein shall be released from all liability under this Agreement, which shall continue in full force the Note, the Mortgage and effect for the Termother Loan Documents accruing after such Transfer. The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementwritten evidence thereof reasonably requested by Borrower.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and that of its members and principals and (if Borrower is a trust) beneficial owners in owning the Collateral in agreeing to make the Loan, and will continue to rely on Borrower's ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10 or in connection with the release of a Release Property subject to and in accordance with, as applicable, Section 2.6 or Section 8.1(c) hereof (and, as applicable, Section 2.6, 6.4(d) or 8.1(c) of the Mortgage Loan Agreement), Borrower shall not, nor shall it permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangesublet, pledgegrant a security interest in, encumber grant options with respect to, or otherwise transfer, exchange or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer ofof the Collateral, any of the Company SharesSenior Mezzanine Collateral, any Individual Property or any part thereof or any legal or beneficial interest therein or, except as may be expressly permitted under and in accordance with Section 5.1.22 hereof, any Lease of any part thereof or any legal or beneficial interest therein, to any Person, (ii) enter into permit a Sale or, other than as contemplated by the Loan, the Other Mezzanine Loans or the Corporate Loan, a Pledge of an interest in any voting arrangementRestricted Party or (iii) except for Permitted Encumbrances, whether mortgage, hypothecate or otherwise encumber the leasehold interest in any Operating Lease (collectively, a "Transfer"), other than pursuant to Leases of space in the Improvements and Non-Material Leases to tenants in accordance with the provisions of Section 5.1.22.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Maryland Owner agrees to sell the Collateral, any of the Senior Mezzanine Collateral or an Individual Property, as applicable, or any part thereof, for a price to be paid in installments; (ii) an agreement by proxyMortgage Borrower or Maryland Owner leasing all or a substantial part of an Individual Property for other than actual occupancy by a space tenant thereunder or a sale, voting agreement assignment or otherwiseother transfer of, or the grant of a security interest in, Mortgage Borrower's or Maryland Owner's right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation's stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, the following Transfers shall not be deemed to be a Transfer; provided that any such Transfer is a complete conveyance of the related interest and not a Pledge (other than as expressly set forth below), encumbrance or other Transfer of such interest
(i) the Transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the direct or indirect interests in a Restricted Party; provided, however, that (A) no such Transfers shall result in the change of control in the Restricted Party, and (B) as a condition to each such Transfer, (I) Lender shall receive not less than thirty (30) days' prior notice of such proposed Transfer and (II) at all times, Carlyle and/or one or more Affiliates of Carlyle shall continue to own, directly or indirectly, at least a fifty-one percent (51%) interest in Borrower, Senior Mezzanine Borrower, Mortgage Borrower, Maryland Owner, Master Tenant and Operator;
(ii) the Pledge of any direct or indirect interests in any Operator, Master Tenant or any direct or indirect equity holder in the Operator and/or in HCR Properties, LLC in favor of Corporate Loan Lender as security for the Corporate Loan as same may have been refinanced subject to the provisions of Section 5.2.12, and any Transfer which occurs as the result of the exercise of remedies by Corporate Loan Lender in accordance with the Corporate Loan or the holders of any indebtedness used to refinance the Corporate Loan, subject to the provisions of Section 5.2.12; provided, however, that it shall be a condition to a Transfer to any Person pursuant to a foreclosure on such Pledge or other sale or assignment thereof that (A) Mortgage Borrower and Maryland Owner shall have obtained and delivered to Lender prior written confirmation from the applicable Rating Agencies that such Transfer shall not cause a downgrade, withdrawal or qualification of the ratings of any Securities or any class thereof issued upon the Securitization of the Mortgage Loan, (B) no Event of Default shall then be continuing, (C) none of Lender, Senior Mezzanine Lender or Mortgage Lender shall have commenced an Enforcement Action under the Loan Documents, the applicable Senior Mezzanine Loan Documents or the Mortgage Loan Documents, (D) no Bankruptcy Action shall have occurred with respect to any of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Maryland Owner, (E) no event shall have occurred or would reasonably be expected to occur as a result thereof, which would be reasonably expected to have, or has, a Material Adverse Effect, and (F) the Subject Sharesnew Operator shall be a Qualified Operator approved by Lender, which approval shall not be unreasonably withheld, conditioned or delayed; and
(iii) grant any proxies Transfer which occurs as the result of the exercise of remedies by Lender or powers of attorney any Other Mezzanine Lender in accordance with the Loan or any Other Mezzanine Loan. With respect to any or all each of the Subject SharesTransfers set forth in clauses (i) through (iii) above, (ivA) agree if after giving effect to divest itself of any voting rights such Transfer and all prior Transfers, more than forty-nine percent (49%) in the Subject Shares aggregate of the direct or indirect interests of Borrower are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interests in Borrower as of the Closing Date, it shall be an additional condition to such Transfer that Lender receives an Additional Insolvency Opinion reasonably acceptable to Lender, (B) in the event that such Transfer renders an assumption in the True Lease Opinion untrue, it shall be an additional condition to such Transfer that Lender receives an Additional True Lease Opinion regarding such Transfer reasonably acceptable to Lender, and (C) if a Securitization of the Mortgage Loan shall have occurred, in the event that such Transfer (I) is of more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower or (vII) commit results in a Person other than Carlyle controlling HCR Healthcare, LLC or agree any direct or indirect subsidiary thereof, it shall be an additional condition to take any such Transfer that (1) Borrower shall have caused Mortgage Borrower and Maryland Owner to have obtained and delivered to Lender prior written confirmation from the applicable Rating Agencies that such Transfer will not cause a downgrade, withdrawal or qualification of the foregoing actionsthen-current ratings of the Securities or any class thereof, and shall have obtained each Designated Mezzanine Lender's consent thereto, which consent shall not be unreasonably withheld, and, (2) if one or more Operators are replaced as a result of such Transfer, that each such replacement Operator shall be a Qualified Operator. Shareholder agrees that Notwithstanding any provision hereof to the contrary, this Section 5.2.10 shall not prohibit or restrict (i) any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If interest in Guarantor or any involuntary Transfer of any interests in or assets of any Affiliate of Guarantor (other than any direct or indirect subsidiary of HCR Properties, LLC or HCR Healthcare, LLC), (ii) any Transfer of any equity interests in any Restricted Party (other than Borrower, Maryland Owner, Mezzanine Borrower, Master Tenant, or Operator), or (iii) any merger or consolidation of any Restricted Party (other than Borrower, Maryland Owner, Mezzanine Borrower, Master Tenant or Operator), so long as, after giving effect to such Transfer, merger or consolidation, (A) Carlyle and/or one or more Affiliates of Carlyle shall continue to have a Controlling Equity Interest in Guarantor, Manor Care, HCR Properties, LLC and HCR Healthcare, LLC, and (B) 100% of the Company Shares occurs (includingequity interests of each of HCR VII Properties, but not limited toLLC, HCR II Healthcare, LLC, Borrower, Maryland Owner, Mezzanine Borrower, Principal, Master Tenant and Operator are owned by HCR Properties, LLC or HCR Healthcare, LLC, and Guarantor controls Manor Care, HCR Properties, LLC and HCR Healthcare, LLC. For the purposes of this paragraph, a sale "Controlling Equity Interest" in Guarantor or a subsidiary of Guarantor means (1) if the equity securities of neither Guarantor nor any direct or indirect parent of Guarantor are traded on a national securities exchange, ownership, directly or indirectly, of at least fifty-one percent (51%) of the equity and voting interests of Guarantor (or such direct or indirect parent) or such subsidiary, as applicable, and (2) if the equity securities of either Guarantor or any direct or indirect parent of Guarantor are traded on a national securities exchange, ownership, directly or indirectly, of at least 30% of the equity and voting interests of Guarantor (or such direct or indirect parent) or such subsidiary, as applicable, and the possession of the power to direct and cause the direction of the voting rights associated with such interests, provided that no Person (other than Carlyle or an Affiliate of Carlyle) then holds a greater percentage of the equity or voting interests in Guarantor (or such direct or indirect parent) or such subsidiary, as applicable. For purposes of this paragraph "control" shall mean the direct or indirect power to direct and cause the direction of the management and policies of a Person whether through ownership of voting securities, beneficial interest, by Shareholder’s trustee contract or otherwise. For the avoidance of doubt, no prohibited Transfer of equity interests in any bankruptcydirect or indirect subsidiary of HCR Properties, LLC or HCR Healthcare, LLC shall be deemed to have occurred solely by virtue of a Transfer that is otherwise permitted hereunder of direct or indirect equity interests in HCR Properties, LLC or HCR Healthcare, LLC. Nothing contained herein shall be deemed to prohibit Corporate Loan Lender from syndicating or otherwise transferring its rights under the Corporate Loan. In addition, nothing contained herein shall be deemed to prohibit additional borrowings or the refinancing of all or a sale portion of the Corporate Loan (without increasing the principal amount thereof other than as permitted under Section 5.2.12); provided that, at Lender's request, Corporate Loan Lender, each Other Mezzanine Lender, Mortgage Lender and Lender shall have entered into an intercreditor agreement with Lender in form and substance reasonably acceptable to Lender, Mortgage Lender and each Other Mezzanine Lender prior to a purchaser at any creditor’s or court sale)Securitization, the transferee (which termand, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder Securitization shall have complied with occurred, acceptable to the terms of this AgreementRating Agencies and reasonably acceptable to Mortgage Lender and each Designated Mezzanine Lender.
Appears in 1 contract
Samples: Loan Agreement (Hcp, Inc.)
Transfers. Shareholder shall not2.1 Prohibited Transfers Each Stockholder agrees not to Transfer any Stock owned by it, except (i) directly or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose for Transfers of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect Stock to a Transfer of, any of the Company Shares, or any interest therein, to any PersonSantera, (ii) enter into Tekelec and/or its Affiliates shall have the right to transfer Stock to any voting arrangementdirect or indirect wholly owned subsidiary of Tekelec (provided the same executes an Instrument of Accession as provided by Section 2.2) and/or pledge, whether hypothecate, grant a security interest in and otherwise encumber Stock in connection with the incurrence by proxy, voting agreement Tekelec or its Affiliates of indebtedness for borrowed money and nothing herein shall prohibit any Transfer of the Stock owned by Tekelec or its Affiliates in connection with any sale of all or substantially all of the stock or assets of Tekelec or any acquisition of Tekelec and/or its Affiliates by merger or otherwise, with respect to any of the Subject Shares, (iii) grant to the extent agreed to by the holders of not less than sixty-five percent (65%) of the Stock, calculated on a fully converted basis, (iv) any proxies or powers of attorney with respect to any Stockholder may Transfer some or all of the Subject SharesStock owned by such Stockholder to another Stockholder (provided that such Stockholder is a party to this Agreement and the Escrow Agreement), including any Transfers to Santera contemplated by the Escrow Agreement (iv) agree provided that the Representative, in its capacity as record owner, may not Transfer any of the shares of Stock registered in its name and held for the benefit of certain stockholders of Santera pursuant to divest itself of any voting rights the terms and subject to the conditions contained in the Subject Shares or Escrow Agreement except as otherwise permitted under Article IV of the Escrow Agreement), (v) commit or agree any time after the Termination Date, so long as approved in advance by the Board of Directors (such approval not to take any of the foregoing actions. Shareholder agrees that be unreasonably withheld), any Transfer of Subject Shares not permitted hereby Stock owned by a Stockholder to stockholders, partners or members of such Stockholder upon the liquidation of such Stockholder or a distribution to the stockholders, partners or members of such Stockholder, (vi) upon the death of any Stockholder, such Stock may be transferred to one, but only one, beneficiary or, if there is more than one beneficiary, then such Stock shall be null transferred to, and void ab initio and that remain in, such Stockholder's estate, by operation of law or (vii) as otherwise expressly provided in this Agreement. Notwithstanding the foregoing or anything else contained herein to the contrary, without the prior written consent of Tekelec, no Stockholder may Transfer any such prohibited Transfer may and should be enjoined. If any involuntary Transfer shares of any of the Company Shares occurs Stock (including, but not limited towithout limitation, any such Transfers otherwise permitted by this Section 2.2 or as contemplated by Sections 2.3 or 2.4) in the event that such proposed Transfer would cause the transactions contemplated by the Merger Agreement to fail to qualify as a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees tax-free transaction under Section 351 of the initial transferee) Code. Any purported Transfer in violation of this Agreement shall take be invalid and hold such Company Shares subject to all of the restrictionsvoid, liabilities and rights under this Agreement, which shall continue not be registered in full force and effect Santera's or any other Person's books or otherwise recognized for any purpose (including for the Term. The Company agrees that if Shareholder attempts purpose of determining voting rights or entitlement to Transfer, vote dividends or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementdistributions).
Appears in 1 contract
Samples: Stockholders' Agreement (Tekelec)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning the Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectively, “Transfer”), all or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company SharesProperties, or any portion of any of the Properties, the Operating Leases or the Collateral or any part thereof or any legal or beneficial interest therein, or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20, (B) pursuant to the release of any Individual Property in accordance with the provisions of Section 2.6 (B) Permitted Transfers pursuant to Section 5.2.10(d) below, and (C) any Transfers permitted pursuant to Section 5.2.10(e) below.
(c) A Transfer shall include, but not be limited to: (i) an installment sales agreement wherein Borrower agrees to sell the Collateral or any part thereof or Mortgage Borrower agrees to sell the Mortgage Collateral or the Properties or any part thereof, in each case for a price to be paid in installments; (ii) an agreement by Mortgage Borrower leasing all or a substantial part of any Individual 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, Mortgage Borrower’s right, title and interest in and to any PersonLeases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer: (i) the Sale or Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; provided, however, no such Transfers shall result in the change of voting control in the Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer, (ii) enter into any voting arrangementthe Sale or Pledge, whether by proxyin one or a series of transactions, voting agreement or otherwise, with respect to any of not more than forty-nine percent (49%) of the Subject Shareslimited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfers shall result in the change of voting control in the Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer and (iii) grant the issuance of newly created stock (and its subsequent sale or transfer) in Hotel Partners or any proxies entity directly or powers indirectly owning a beneficial interest in Hotel Partners (the “Traded Entity”), provided such stock is listed on the New York Stock Exchange or such other nationally recognized stock exchange and, provided, further, that (A) Borrower shall pay to Lender all administrative costs, all legal fees and expenses reasonably incurred by Lender relating to the initial offering of attorney with respect the Traded Entity, and (B) at all times, Hotel Fund must continue to control Borrower, Operating Lessee, Junior Mezzanine Borrower, Guarantor and Mortgage Borrower and own, directly or indirectly, at least a twenty-five percent (25%) interest in Borrower, Mortgage Borrower, Junior Mezzanine Borrower, Operating Lessee and Guarantor. If after giving effect to any Transfer, more than forty-nine percent (49%) in the aggregate of direct or all indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Subject SharesClosing Date, Borrower shall deliver to lender an Insolvency Opinion reasonably acceptable to Lender and the Rating Agencies to address the effect of such Transfer(s). In connection with the Transfers permitted under this Section 5.2.10(d), Hotel Partners may simultaneously merge into or with (or otherwise be combined with) the Traded Entity or liquidate so long as Borrower shall deliver to Lender an Additional Insolvency Opinion and a due authorization and enforceability opinion reflecting such Transfer substantially conforming to the opinions delivered in connection with the funding of the Loan. Notwithstanding anything contained in this Section 5.2.10(d) to the contrary, a Sale or Pledge of any direct ownership interests in Borrower, Mortgage Borrower, Mortgage Borrower 1 Principal or Operating Lessee shall not be permitted.
(e) No assumption of the Loan shall occur on or before the first (1st) anniversary of the first (1st) Payment Date. Thereafter, Lender’s consent to a one (1) time Transfer in the Mortgage Borrower or Borrower that results in an assumption of the Loan or Mortgage Loan shall not be unreasonably withheld, provided that Lender receives sixty (60) days prior written notice of such Transfer hereunder and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Mortgage Lender shall have approved such Transfer and the assumption of the Mortgage Loan pursuant to the Mortgage Loan Documents;
(ii) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such transfer;
(iii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (xi) below);
(iv) agree to divest itself of any voting rights in The proposed transferee (the Subject Shares “Transferee”) or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby Transferee’s Principals shall be null a reputable and void ab initio experienced nationally known first class hotel company possessing at least fifteen (15) years experience in owning and that any such prohibited Transfer may managing no less than thirty-five (35) full service hotels with a minimum of ten thousand (10,000) rooms and should be enjoinedotherwise similar in size, scope, class, use and value as the Properties or employs a Qualified Manager in lieu of having its own direct property management experience. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by ShareholderThe term “Transferee’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, Principals” shall include any (A) Transferee’s managing members, general partners or principal majority shareholders and all transferees (B) such other members, partners or shareholders which directly or indirectly own a fifty-one percent (51%) or greater economic and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue voting interest in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.Transferee;
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning the Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Collateral or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party (collectively, a “Transfer”), other than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof and (B) the disposition of equipment and other personal property pursuant to the replacement thereof or enter into otherwise in the ordinary course of operation of the Properties.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Collateral or any contractpart thereof for a price to be paid in installments; (ii) with the exception of the Operating Lease, optionan agreement by Mortgage Borrower leasing all or a substantial part of an Individual Property for other than actual occupancy by a space tenant thereunder or a sale, derivative, hedging, swap, forward assignment or other agreementtransfer of, understanding or the grant of a security interest in, Mortgage Borrower’s or Operating Lessee’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer: (i) the Sale or Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party or other arrangement beneficial interest, and (including ii) the Sale or Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the limited partnership interests or membership interests (as the case may be) in a Restricted Party; provided, however, in the case of each of the foregoing (i) and (ii), (A) no such sales or transfers shall result in the change of voting control in the Restricted Party, (B) as a condition to each such sale or transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed sale or transfer, (C) if after giving effect to any profit sharing arrangementsuch Sale or Pledge, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies, (D) no such Sale or Pledge of any direct ownership interests in Borrower, Mortgage Borrower, Operating Lessee, or Operating Lessee Pledgor shall be permitted, and (E) Borrower, Mortgage Borrower, Operating Lessee, and Operating Lessee Pledgor shall each continue to be a Special Purpose Entity following such Sale or Pledge. In addition, at all times, Guarantor must continue to control Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, and any Affiliated Manager and own, directly or indirectly, at least a one hundred percent (100%) interest in Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, and Affiliated Manager. Lender’s consent or approval shall not be required with respect to (I) the trading or issuance of shares or other securities of Highland Hospitality Corporation on a Transfer of, any of the Company Sharesnationally recognized stock exchange, or any (II) the transfer, sale or issuance of operating partnership units or other securities of Guarantor to a Qualified Transferee, provided that such Qualified Transferee or Highland Hospitality Corporation controls Guarantor and owns not less than a thirty percent (30%) interest thereinin Guarantor, to any Personor (III) the transfer, (ii) enter into any voting arrangementsale or issuance of operating partnership units of Guarantor in connection with the merger, whether by proxyreorganization or consolidation of Highland Hospitality Corporation or Guarantor, voting agreement provided that the surviving entity is a publicly listed company on a nationally recognized exchange and such entity has a net worth greater than the net worth of Highland Hospitality Corporation immediately before such merger, reorganization or otherwiseconsolidation, provided further, that with respect to any of the Subject Shares, (iiiII) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, and (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court saleIII), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any as a condition to each such Transfer on the Company’s books transfer, sale or issuance, Lender shall receive not less than fifteen (15) days prior notice of such proposed transfer, sale or issuance, and records, (y) issue if after giving effect to any such transfer, sale or issuance, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a new certificate Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or instrument representing any indirect interest in such Restricted Party as of the Company Shares Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies.
(e) Lender shall not be required to demonstrate any actual impairment of its security or permit any book entries for any such increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer with respect without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any Company Shares that are previous Transfer.
(f) Lender may or may not consent to any assumption of the Loan in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementLender’s sole discretion.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lenders have examined and relied on the experience of Borrower and its stockholders, general partners, members and (if Borrower is a trust) beneficial owners, as applicable, and principals of Borrower in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Administrative Agent and Lenders have a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Administrative Agent and Lenders can recover the Debt by a sale of the Properties.
(b) Without the prior written consent of the Unanimous Lenders and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than, in either case, to the extent that such Transfer constitutes a Permitted Transfer or Permitted Debt. Any Transfer made without Unanimous Lenders’ prior written consent (to the extent that such consent is required pursuant to this Section 5.2.10) shall be null and void. Notwithstanding the foregoing, if after giving effect to any such Transfer of a direct interest in a Restricted Party permitted in this Section 5.2.10 more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Borrower are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interests in Borrower as of the Closing Date and such Person was not “paired” in the Insolvency Opinion, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Administrative Agent an Additional Insolvency Opinion reasonably acceptable to Administrative Agent.
(c) A Transfer shall include, but not be limited to, (i) directly an installment sales agreement wherein Borrower agrees to sell an Individual Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of an Individual 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10 but subject to the final two sentences of this Section 5.2.10(d) and without limiting the ability to effectuate Permitted Transfers without notice or consent of Administrative Agent or any Lender, no Lender or Administrative Agent consent shall be required in connection with:
(i) one or a series of Transfers, of the stock, limited partnership interests or membership interests (excluding any direct interests of Borrower or any SPE Constituent Entity) (as the case may be) in a Restricted Party; provided, however, (A) no such Transfer shall result in Blackstone no longer indirectly offerowning 51% of the direct and indirect equity interests in Borrower and Controlling Borrower, sell (including short salesB) as a condition to each such Transfer, Administrative Agent shall receive not less than thirty (30) days’ prior written notice of such proposed Transfer, and (C) if after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Borrower are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in Borrower as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Administrative Agent an Additional Insolvency Opinion reasonably acceptable to Administrative Agent. Notwithstanding anything contained in this Section 5.2.10(d), transferexcept for Permitted Transfers pursuant to clauses (i) and (j) of the definition thereof, tenderno Transfer of any direct ownership interests in any Borrower or any SPE Constituent Entity shall be permitted without Unanimous Lenders’ consent; or
(ii) a Public Sale to a Qualified Public Company; provided that (A) if after giving effect to any such Public Sale, assignmore than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, exchangeBorrower shall deliver to Administrative Agent an Additional Insolvency Opinion reasonably acceptable to Administrative Agent, pledge(B) either (1) any two members of an Approved Senior Management Team or (2) any senior management team for Parent, encumber or otherwise dispose consisting of the top four (including 4) executives reasonably approved by giftAdministrative Agent, are retained, and (C) Borrower shall not fail to be a Special Purpose Entity by reason of such Public Sale. Upon completion of any such Public Sale subject to and in accordance with the provisions of this Section 5.2.10(d)(ii), Guarantor shall be released as a guarantor under the Guaranty for any acts occurring after such sale, merger or operation public listing; provided that a replacement guarantor with a Net Worth of lawat least $200,000,000.00 (exclusive of its interest in the Properties) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or has assumed all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any liabilities and obligations of the foregoing actionsGuarantor as guarantor under the Guaranty or otherwise executed a replacement guaranty reasonably satisfactory to the Administrative Agent. Shareholder agrees that Following any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court saleaccordance with this Section 5.2.10(d)(ii), the transferee Qualified Public Company shall be deemed to be an Excluded Entity. For purposes of clarity, the provisions of Section 5.2.3 and this Section 5.2.10 shall not restrict the Qualified Public Company (which term, as used herein, shall include or any and all transferees and subsequent transferees direct or indirect owner of the initial transfereeQualified Public Company, but excluding any Loan Party) from effectuating a restructuring and such Qualified Public Company (or any direct or indirect owner of the Qualified Public Company, but excluding any Loan Party) shall take and hold be permitted to effectuate a restructuring, including amending or modifying its organizational documents or commercial arrangements including any amendments or modifications reasonably determined by such Qualified Public Company Shares subject to all of the restrictionsbe required to satisfy stock exchange, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote quotation system listing or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementtrading requirements.
Appears in 1 contract
Samples: Loan Agreement (Excel Trust, L.P.)
Transfers. Shareholder (a) Borrower acknowledges that each Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning collateral such as the Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that each Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, each Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Administrative Agent, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectivelythe Property, “Transfer”)the Mezzanine A Collateral, or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Collateral or any part thereof or any legal or beneficial interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject SharesPACE Loan, (iii) grant permit a Sale or Pledge of an interest in any proxies or powers of attorney with respect to any or all of the Subject SharesRestricted Party, (iv) agree to divest itself permit a Sale or Pledge of the CPLV Lease or any voting rights in the Subject Shares interest therein or (v) commit permit a Sale or agree Pledge of any interest in CPLV Tenant or CPLV Tenant’s leasehold interest in the Property other than (A) pursuant to take any Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20, (B) Permitted Transfers (including Permitted Encumbrances), (C) pursuant to customary short-term occupancy agreements with the CPLV Tenant or short-term hotel guests, or (D) a Transfer of a portion of the foregoing actions. Shareholder agrees that any Transfer Property to a Governmental Authority in connection with a Condemnation of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any portion of the Company Shares occurs Property in accordance with Section 6.3 hereof.
(includingc) A Transfer shall include, but not be limited to, a sale by Shareholder’s trustee in (i) an installment sales agreement wherein Borrower agrees to sell the Collateral or any bankruptcypart thereof, Mezzanine A Borrower Mezzanine A Borrower agrees to sell the Mezzanine A Collateral or any part thereof, or a sale Mortgage Borrower agrees to a purchaser at sell the Property or any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such votepart thereof, in each case, unless for a price to be paid in installments; (ii) an agreement by Mortgage 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, Mortgage Borrower’s right, title and until Shareholder shall have complied interest in and to the CPLV Lease or any CPLV Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the terms provisions of this Agreement.Section 5.2.10(a), Administrative Agent’s consent shall not be required in connection with (i) one or a series of Transfers (except for a Pledge) of (x) not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party or (y) the indirect equity interests in Mezzanine C Borrower by any Person that owns less than forty-nine percent (49%) of the economic and legal beneficial interests in, and does not Control, any of Mortgage Borrower, Mortgage Principal, Principal, any Mezzanine Borrower or Guarantor, (ii) any transfer of any direct or indirect legal or beneficial interests in the REIT, so long as it is a Public Vehicle, (iii) the cancellation, surrender, disposition, issuance, sale, grant, or Transfer of the operating partnership units of Guarantor, so long as the REIT continues to Control Guarantor and own directly or indirectly not less than 51% of the legal and beneficial interest in Guarantor, (iv) the pledge of or grant of a security interest in the direct or indirect equity interests in Mortgage Borrower as security for the Loan or the other Mezzanine Loans, (v) the exercise by any Mezzanine Collateral Agent (on behalf of the applicable Mezzanine Lender) of any rights or remedies such Mezzanine Collateral Agent may have under the applicable Mezzanine Loan Documents with respect to the pledge and/or security interest referred to in the foregoing clause (iv), and (vi) the Mezzanine C Equity Conversion; provided, however, that with respect to each such Transfer (other than under clause (v) or clause (vi) above), (A) after giving effect to such Transfer, (x) REIT shall continue to Control Mortgage Borrower, Borrower and Guarantor,
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower's ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the other obligations under the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of such other obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party (collectively, “a "Transfer”"), or enter into any contractother than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20.
(c) A Transfer shall include, optionbut not be limited to, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementi) with respect an installment sales agreement wherein Borrower agrees to a Transfer of, any of sell the Company Shares, Property or any interest therein, part thereof for a price to any Person, be paid in installments; (ii) enter into any voting arrangementan agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect Borrower's right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney such corporation's stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with respect Section 5.1.22 hereof. -42-
(d) Notwithstanding the provisions of this Sections 5.2.10, the following transfers shall not be deemed to be a Transfer and no assumption fee will be charged in connection therewith:
(i) The (a) Sale of limited partnership interests to current limited partners of a Restricted Party (or to Affiliates of such limited partners) and (b) Sale or Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party to any Person who is not a current limited partner (or Affiliate) of a Restricted Party or under common control with such limited partner; provided, however, that no such transfers shall result in a change of voting control in the Restricted Party, and as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer, together with copies of all instruments effecting such transfer and such other information as shall reasonably allow Lender to determine if such transfer meets the criteria set forth herein, and Borrower shall pay all of the Subject Sharesfees and expenses incurred by Lender in connection therewith, including, without limitation, reasonable attorneys' fees;
(ii) The Sale or Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party to any Person who is not a limited partner of a Restricted Party as of the date hereof, or a Person who is wholly owned and controlled by such limited partner; provided, however, that no such transfers shall result in a change of voting control in the Restricted Party, and as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer, together with copies of all instruments effecting such transfer and such other information as shall reasonably allow Lender to determine if such transfer meets the criteria set forth herein, and Borrower shall pay all of the fees and expenses incurred by Lender in connection therewith, including, without limitation, reasonable attorneys' fees;
(iii) So long as Pennsylvania Real Estate Investment Trust remains a publicly traded and listed entity on a nationally recognized stock exchange, the sale or transfer of shares of stock in Pennsylvania Real Estate Investment Trust; and
(iv) agree The sale or transfer of partnership interests in PREIT Associates, L.P., provided, however, that Pennsylvania Real Estate Investment Trust remains the general partner of PREIT Associates, L.P. and maintains at all times at least a fifty-one percent (51%) interest in PREIT Associates, L.P.
(e) No consent to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any assumption of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby Loan shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any occur on or before the first anniversary of the Company Shares occurs first Payment Date. Thereafter, Lender reserves the right to condition the consent required hereunder upon (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale)i) reasonable and necessary modifications of the non-economic terms hereof and of the Mortgage, the transferee Note or the other Loan Documents; (which term, as used herein, shall include any and all transferees and subsequent transferees ii) an assumption of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company Note, the Mortgage and the other Loan Documents as so modified by the proposed transferee, subject to the provisions of Section 9.4 of this Agreement; (iii) payment of all of the fees and expenses incurred in connection with such Transfer, including, without limitation, the cost of any third party reports, legal fees and expenses, rating agency fees and expenses or required legal opinions; (iv) the payment of a non-refundable $5,000 application fee and an assumption fee equal to one-half percent (0.5%) of the outstanding principal balance of the Loan for the first Transfer and one percent (1.0%) of the outstanding principal balance of the Loan for each subsequent Transfer; (v) the delivery of an Additional Insolvency Opinion reflecting the proposed Transfer satisfactory in form and substance to Lender; (vi) the proposed transferee's continued compliance with the representations and covenants set forth in Section 4.1.30 of this Agreement; (vii) 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 and the Rating Agencies; (viii) prior to any release of any Guarantor, a substitute guarantor reasonably acceptable to Lender shall have assumed the Guaranty executed by such Guarantor or executed a replacement guaranty reasonably satisfactory to Lender; (ix) if required by Lender, confirmation in writing from the applicable Rating Agencies to the effect that such Transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities in any applicable Securitization; and (x) permit 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. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon any Transfer by Borrower or any Restricted Party without Lender's consent to the extent such consent is required herein. This provision shall apply to every Transfer on which requires Lender's consent hereunder regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer. In furtherance of Section 5.2.10(e)(viii) above, in the Company’s books event that (x) PREIT Associates, L.P. sells or transfers twenty-five percent (25%) or more of its limited partnership interest in Borrower to any Person who is not a Restricted Party as of the date hereof, and records, (y) issue a new certificate such sale or instrument representing any of transfer has been consented to by Lender (to the Company Shares extent required herein) and otherwise satisfies the criteria set forth above for transfers, an additional guarantor (in addition to PREIT Associates, L.P.) acceptable to Lender (including such guarantor's creditworthiness) shall be permitted to execute an additional guaranty satisfactory to Lender in an amount equal to only such transferees respective limited partnership interest in Borrower, and PREIT Associates, L.P. shall execute an amendment to the Guaranty confirming its obligations under the Guaranty and reducing the same by such amount that the additional guarantor is liable for under such additional guaranty following such sale or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementtransfer.
Appears in 1 contract
Samples: Loan Agreement (Pennsylvania Real Estate Investment Trust)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the creditworthiness and experience of Borrower 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 loan secured by the Mortgage, and that Lender will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt. Borrower shall not, not without Lender’s prior written consent and except as otherwise expressly provided in this Section 5.2.10: (i) directly or indirectly offer, sell (including short sales), transfer, tendersell, assign, exchangeconvey, mortgage, grant, pledge, encumber assign, grant options with respect to, transfer or otherwise dispose of (including by gift, merger its legal or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of beneficial interests in the Company Shares, Property or any interest thereinpart thereof other than pursuant to Leases permitted under, to any Personand entered into in accordance with, Section 5.1.20 hereof, (ii) enter into permit any voting arrangementowner, directly or indirectly, of an ownership interest the Property, to transfer or dispose of such interest, whether by proxytransfer of stock or other interest in a Restricted Party, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, incur Indebtedness (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect Indebtedness permitted pursuant to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Property or any part thereof, (v) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise transfer or dispose of any direct or indirect ownership interest in any Restricted Party, or permit any Restricted Party that owns an interest in another Restricted Party to do the same, or (vi) file a declaration of condominium with respect to the Property (any of the foregoing transactions, a “Transfer”). Notwithstanding the foregoing, for purposes hereof, a “Transfer” shall not include Permitted Transfers.
(b) Notwithstanding Section 5.2.10(a), at any time other than the period commencing thirty (30) days prior to a Securitization and ending thirty (30) days after a Securitization, Lender’s consent shall not be required in connection with one or a series of Transfers, of up to forty-nine percent (49%) of the stock, limited partnership interests or membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in such Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. In addition, at all times, IREIT must continue to (i) Control the applicable Restricted Party, and (ii) own, directly or indirectly, not less than fifty-one percent (51%) of the legal and beneficial interest in the applicable Restricted Party.
(c) Notwithstanding Section 5.2.10(a), at any time other than the period commencing thirty (30) days prior to a Securitization and ending thirty (30) days after a Securitization, Lender shall not withhold its consent to a Transfer of the entire Property or all of the outstanding ownership interests in Borrower in a single transaction to one newly-formed Special Purpose Entity which shall be a wholly-owned subsidiary of IREIT (“Permitted Affiliate Transferee”) which shall be approved by Lender in its reasonable discretion (“Permitted Affiliate Transfer”), provided (1) no Event of Default shall have occurred and be continuing, (2) the creditworthiness of IREIT, as applicable, has not deteriorated, in the sole discretion of Lender, from the Closing Date to the date of the proposed Transfer, and (3) Borrower shall have paid all reasonable and customary third party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer (but not any assumption or processing fee).
(d) Notwithstanding Section 5.2.10(a), at any time after other than during the period that is thirty (30) days prior to and thirty (30) days after a Securitization, Lender shall not withhold its consent to a Transfer of the Property and assumption of the Loan, provided that Lender receives thirty (30) days’ prior written notice of such Transfer and further provided that the following additional requirements are satisfied:
(i) the proposed transferee of the Property shall be a Special Purpose Entity (the “Transferee”) which at the time of such transfer will be in compliance with, and must be able to satisfy all of, the representations, warranties and covenants contained in Section 4.1.30, Section 4.1.35, Section 5.1.23 and Section 5.2.9 and which shall have assumed in writing (subject to the terms of Section 9.3 hereof) and agreed to comply with all the terms, covenants and conditions set forth in this Loan Agreement and the other Loan Documents, expressly including, without limitation the representations, warranties and covenants contained in Section 4.1.30, Section 4.1.35, Section 5.1.1 and Section 5.1.23 hereof;
(ii) Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal, reduction or qualification of the ratings in effect immediately prior to such Transfer for the Securities, or any class thereof, issued in connection with a Securitization which are then outstanding;
(iii) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity not worse than the net worth and liquidity of Borrower and its Principals as of the date hereof or an aggregate net worth and liquidity otherwise reasonably acceptable to Lender;
(iv) Transferee or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly by Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(vii) there shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(viii) the Property shall be managed by a Qualified Manager pursuant to a Replacement Management Agreement;
(ix) Transferee, Transferee’s Principals and Related Entities shall not have defaulted under its or their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(x) no Event of Default shall have occurred and be continuing and no Default or Event of Default shall otherwise occur as a result of such Transfer;
(xi) Borrower shall deliver, at its sole cost and expense, an endorsement to each existing Title Insurance Policy insuring the related Mortgage, as modified by the assumption agreement, as a valid first lien on the Property and naming Transferee as owner of the fee estate (or leasehold estate, as applicable) of the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, such Property shall not be subject to any additional exceptions or liens other than those contained in such Title Insurance Policy issued on the date hereof and the Permitted Encumbrances relating thereto;
(xii) Intentionally omitted;
(xiii) Intentionally omitted;
(xiv) Transferee, at its sole cost and expense, shall deliver opinions regarding existence, authority and enforceability, which opinions may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives with respect to the proposed transaction;
(xv) Transferee and Transferee’s Principals shall deliver (1) all organizational documentation reasonably requested by Lender, which shall be reasonably acceptable to Lender, and (2) all certificates, agreements and covenants reasonably required by Lender;
(xvi) Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity (if any) executed by Guarantor or execute a replacement guaranty and environmental indemnity (if applicable) reasonably satisfactory to Lender;
(xvii) Borrower shall have paid an assumption fee equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Loan in connection with the first such Transfer, and an assumption fee equal to one percent (1.0%) of the then outstanding principal balance of the Loan in connection with each subsequent Transfer, provided, however, no such assumption fee shall be payable if the Transferee is wholly owned by an Identified Affiliate; and;
(xviii) Borrower shall pay (or cause to be paid) any and all reasonable out-of-pocket costs actually incurred by Lender in connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements) and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies (if any) pursuant to clause (ii) above.
(e) Notwithstanding Section 5.2.10(a), at any time after other than during the period that is thirty (30) days prior to and thirty (30) days after a Securitization, Lender shall not withhold its consent to a Transfer of all of the outstanding ownership interests in Borrower in a single transaction to an Identified Affiliate, provided that Lender receives thirty (30) days’ prior written notice of such Transfer and further provided that the following additional requirements are satisfied:
(i) Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal, reduction or qualification of the ratings in effect immediately prior to such Transfer for the Securities, or any class thereof, issued in connection with a Securitization which are then outstanding;
(ii) The Identified Affiliate shall, as of the date of such transfer, have an aggregate net worth and liquidity not worse than the net worth and liquidity of IREIT as of the date hereof or an aggregate net worth and liquidity otherwise reasonably acceptable to Lender;
(iii) The Identified Affiliate and all other entities which may be owned or Controlled directly or indirectly by the Identified Affiliate (“Identified Affiliate Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(iv) there shall be no material litigation or regulatory action pending or threatened against the Identified Affiliate or Identified Affiliate Related Entities which is not reasonably acceptable to Lender;
(v) the Property shall continue to be managed by Manager or be managed by a Qualified Manager pursuant to a Replacement Management Agreement;
(vi) no Event of Default shall have occurred and be continuing and no Default or Event of Default shall otherwise occur as a result of such Transfer;
(vii) intentionally omitted;
(viii) The Identified Affiliate, at its sole cost and expense, shall deliver opinions regarding existence, authority and enforceability, which opinions may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives with respect to the proposed transaction;
(ix) The Identified Affiliate shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably acceptable to Lender, and (B) all certificates, agreements and covenants reasonably required by Lender;
(x) Prior to any release of Guarantor, the Identified Affiliate shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity (if any) executed by Guarantor or execute a replacement guaranty and environmental indemnity (if applicable) reasonably satisfactory to Lender; and
(xi) Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee equal to $5,000 and all expenses of the Rating Agencies (if any) pursuant to clause (i) above.
(f) Notwithstanding Section 5.2.10(a), Lender’s consent shall not be required with respect to the merger of IREIT with any other Identified Affiliate; provided that (i) Lender shall receive not less than thirty (30) days prior written notice of any such proposed merger, (ii) no Event of Default shall have occurred and be continuing, (iii) the net worth of the entity surviving such merger shall equal or exceed the net worth of IREIT immediately prior to such merger, and (iv) immediately following such merger, the entity surviving the merger shall be publicly registered with the Securities and Exchange Commission.
(g) Notwithstanding Section 5.2.10(a), at any time other than the period commencing thirty (30) days prior to a Securitization and ending thirty (30) days after a Securitization, Lender’s consent shall not be required in connection with the acquisition by IREIT of any entity whether by merger, stock purchase, asset purchase or any other manner; provided that: (i) Lender shall receive not less than thirty (30) days prior written notice of any such proposed transaction, (ii) no Event of Default shall have occurred and be continuing, (iii) IREIT is the surviving entity following such a transaction, and (iv) the net worth of IREIT after the transaction shall equal or exceed the net worth of IREIT immediately prior to such a transaction.
(h) Notwithstanding Section 5.2.10(a), at any time other than the period that is thirty (30) days prior to and thirty (30) days after a Securitization, Lender shall not withhold its consent to, and shall not charge an assumption fee in connection, with a Transfer by IREIT of one hundred percent (100%) of the membership interests in Borrower to a joint venture in which IREIT owns at least twenty-five percent (25%) of the stock, partnership interests or membership interests (“JV Transferee”), provided that (i) Lender receives at least thirty (30) days’ prior written notice of such Transfer, (ii) no Event of Default shall have occurred and be continuing at the time of such written notice or the Transfer, (iii) IREIT maintains operational and managerial control of the JV Transferee and Borrower, (iv) subject to Section 5.16 of the Guaranty Agreement, IREIT and IREIC continue to be Guarantor, (v) IREIT’s partner in the JV Transferee (the “JV Partner”) or the JV Partner’s parent entity shall have at least $350,000,000.00 in assets, (vi) the JV Partner or the JV Partner’s parent entity shall have a net worth of at least $175,000,000.00; (vii) neither the JV Partner nor any of its Affiliates shall have been a party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within
Appears in 1 contract
Samples: Loan Agreement (Inland Real Estate Income Trust, Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members and (if Borrower is a trust) beneficial owners, as applicable, and principals of Borrower in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Properties.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than, in either case, to the extent that such Transfer constitutes a Permitted Transfer. Any Transfer made without Lender’s prior written consent (to the extent that such consent is required pursuant to this Section 5.2.10) shall be null and void. For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, the Sale or Pledge of a direct or indirect interest in an Excluded Entity shall not constitute a Transfer and may be effectuated by the applicable Person without the consent of, or any notice to, Lender.
(c) A Transfer shall include, but not be limited to, (i) directly an installment sales agreement wherein Borrower agrees to sell an Individual Property or indirectly offerany part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of an Individual Property for other than actual occupancy by a space Tenant thereunder or a sale, sell assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (including short salesiii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10 but subject to the final two sentences of this Section 5.2.10(d), transferLender’s consent shall not be required in connection with one or a series of Transfers, tenderof not more than forty-nine percent (49%) of the stock, assignlimited partnership interests or membership interests (provided that, exchangein the case of any multi-member Restricted Party, pledge, encumber or otherwise dispose excluding any interests of (including by gift, merger or operation of lawthe managing member) (collectivelyas the case may be) in a Restricted Party; provided, “Transfer”)however, or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementi) with respect to no such Transfer shall result in the change of Control in a Transfer of, any of the Company Shares, or any interest therein, to any PersonRestricted Party, (ii) enter as a condition to each such Transfer, Lender shall receive not less than thirty (30) days’ prior written notice of such proposed Transfer, and (iii) if after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender and, following a Securitization, acceptable to the Rating Agencies. Notwithstanding anything contained in this Section 5.2.10(d), no Transfer of any direct ownership interests in any Borrower, any SPE Constituent Entity, any Mezzanine Borrower or any Mezzanine SPE Constituent Entity shall be permitted. In addition, at all times, Guarantor must continue to Control Borrower, each SPE Constituent Entity, Mezzanine Borrower and each Mezzanine SPE Constituent Entity and own, directly or indirectly, at least a fifty-one percent (51%) legal and beneficial interest in Borrower, each SPE Constituent Entity, Mezzanine Borrower and each Mezzanine SPE Constituent Entity.
(e) No Transfer of all of the Properties and assumption of the Loan shall occur during the period that is sixty (60) days prior to a Securitization or the period that is sixty (60) days after a Securitization. Otherwise, Lender’s consent to a one (1) time Transfer of all of the Properties and assumption of the entire Loan by the proposed Transferee (the “Transferee”) shall be given in Lender’s sole discretion provided that Lender receives sixty (60) days’ prior written notice of such Transfer and no Event of Default has occurred and is continuing at the time Lender receives such notice and at the time such Transfer is consummated. In determining whether to consent to any proposed Transfer pursuant to this Section 5.2.10(e), Lender may require or consider, without limitation, the following actions and matters:
(i) Borrower shall pay Lender a fee equal to one-half percent (0.5%) of the outstanding principal balance of the Loan at the time of such Transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) Transferee or Transferee’s Sponsors must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Sponsors shall, as of the date of such Transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Sponsors and all other entities which may be owned or Controlled directly or indirectly by Transferee’s Sponsors (“Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Sponsors or any voting arrangementRelated Entities which is not reasonably acceptable to Lender;
(viii) Transferee, whether by proxy, voting agreement Transferee’s Sponsors and any Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s SPE Constituent Entities must be able to make all of the Subject Sharesrepresentations set forth in Sections 4.1.30, 4.1.35, and 4.1.38, and perform all of the covenants set forth in Sections 5.1.27, 5.1.29 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s SPE Constituent Entities shall deliver (iiiA) grant any proxies or powers all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender, and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) Following a Securitization, if required by Lender, Transferee shall be approved by the Rating Agencies rating the Loan, which approval, if required by Lender, shall take the form of attorney a Rating Agency Confirmation with respect to such Transfer;
(xi) Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty and the Environmental Indemnity or executed a replacement guaranty and/or environmental indemnity reasonably satisfactory to Lender;
(xii) Borrower shall deliver, (iv) agree at its sole cost and expense, an endorsement to divest itself of any voting rights in each Title Insurance Policy, as modified by the Subject Shares or (v) commit or agree to take any assumption agreement, confirming the Lien of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, Mortgages as a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to valid first lien on all of the restrictionsProperties and naming the Transferee as owner of all of the Properties, liabilities which endorsements shall insure that, as of the date of the recording of the assumption agreement, the applicable Individual Property shall not be subject to any additional exceptions or Liens other than those contained in the applicable Title Insurance Policy issued on the Closing Date and rights the Permitted Encumbrances;
(xiii) Each Individual Property shall be managed by Qualified Manager (and, if the Qualified Manager managing any one or more Individual Properties prior to the Transfer is being replaced, the replacement Qualified Manager shall manage such Individual Properties pursuant to a Replacement Management Agreement);
(xiv) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender (A) an Additional Insolvency Opinion in respect of such Transfer satisfactory in form and substance to Lender and (B) a fraudulent conveyance opinion in respect of such Transfer, each of which opinions may be relied upon by Lender and the Rating Agencies with respect to the proposed Transfer; and
(xv) if any Mezzanine Loan is still outstanding, the related Mezzanine Borrower shall have complied with all of the terms and conditions set forth in the related Mezzanine Loan Documents with respect to the Transfer and to effectuate the assumption of such Mezzanine Loan. Immediately upon the consummation of a Transfer pursuant to this Section 5.2.10(e) (provided that Lender has consented thereto in accordance with the foregoing), each Borrower and Guarantor shall be released from all liability under this Agreement, which shall continue in full force the Note, the Mortgages and effect for the Termother Loan Documents accruing after the date of such Transfer (other than to the extent such liability is expressly stated herein to survive). The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with written evidence thereof if the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company same is reasonably requested by Borrower.
(f) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon the consummation of a purported Transfer that is prohibited (xand as such, null and void) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect pursuant to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementSection 5.2.
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Brixmor Property Group Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Properties.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party (collectively, a “Transfer”), or enter into any contractother than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof; and (B) Permitted Encumbrances.
(c) Subject to subclauses (A) and (B) of Section 5.2.10(b), option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer ofshall include, but not be limited to, (i) an installment sales agreement wherein any of the Company SharesIndividual Borrower agrees to sell its Individual Property, or any part thereof, for a price to be paid in installments; (ii) an agreement by any Individual Borrower leasing all or a substantial part of its Individual 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 thereinin, its right, title and interest in and to any PersonLeases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer: (i) the pledge, sale or transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; provided, however, no such pledges, sales or transfers shall result in the change of control in the Restricted Party, and as a condition to each such pledge, sale or transfer, Lender shall receive not less than ten (10) Business Days prior notice of such pledge, proposed sale or transfer, (ii) enter the pledge, sale or transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the limited partnership interests or non-managing or membership interests (as the case may be) in a Restricted Party; provided, however, no such pledges, sales or transfers shall result in the change of control in the Restricted Party, and as a condition to each such pledge, sale or transfer, Lender shall receive not less than ten (10) Business Days prior notice of such proposed pledge, sale or transfer, and (iii) the sale, transfer or issuance of not more than eighty-five percent (85%) of the beneficial ownership interests in Guarantor, provided that (A) such beneficial ownership interests are securities listed on the New York Stock Exchange or such other nationally-recognized stock exchange, (B) no such sales or transfers shall result in the change of control in Guarantor, and (C) if required by Lender, the delivery of a nonconsolidation opinion reflecting the proposed transfer satisfactory in form and substance to Lender, and provided, further, that the subsequent sale, transfer, exchange or trading of such securities shall not be deemed a Transfer.
(e) Lender’s consent to a one (1) time Transfer of the Properties shall not be unreasonably withheld provided that Lender receives thirty (30) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay Lender a transfer fee equal to one-half of one percent (0.50%) of the outstanding principal balance of the Loan at the time of such Transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Assignee”) or Assignee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties, which expertise shall be reasonably determined by Lender;
(iv) Assignee and Assignee’s Principals shall, as of the date of such Transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Assignee and Assignee’s Principals and all other entities which, as of the date of such Transfer, will have any equity interest in Assignee and are owned or Controlled directly or indirectly by Assignee’s Principals (“Assignee Related Entities”) must not have been a debtor in any proceeding under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law within seven (7) years prior to the date of the proposed Transfer;
(vi) Assignee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into any voting arrangementan assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Assignee, whether by proxyAssignee’s Principals or Assignee Related Entities which is not reasonably acceptable to Lender;
(viii) Assignee, voting agreement Assignee’s Principals and Assignee Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Assignee and Assignee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30 and 5.2.9 hereof, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Assignee and Assignee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements and covenants reasonably required by Lender;
(x) If a Securitization shall have occurred, Lender shall have received written confirmation from the applicable Rating Agencies that such Transfer shall not result in a downgrade, withdrawal or qualification of the Subject Sharesthen current ratings of the Securities or any class thereof;
(xi) Borrower or Assignee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender;
(iiixii) grant any proxies or powers of attorney with respect Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender; and
(xiii) Borrower shall deliver, (iv) agree at its sole cost and expense, an endorsement to divest itself the Title Insurance Policies, as modified by the assumption agreement, as a valid first lien on the Properties and naming the Assignee as owner of the Properties, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Properties shall not be subject to any voting rights additional exceptions or liens other than those contained in the Subject Shares or (v) commit or agree relevant Title Insurance Policies issued on the date hereof and the Permitted Encumbrances relating thereto. Immediately upon a Transfer to take any such Assignee and the satisfaction of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsabove requirements, liabilities the named Borrower and rights Guarantor herein shall be released from all liability under this Agreement, which shall continue in full force the Note, the Mortgages and effect for the Termother Loan Documents accruing after such Transfer. The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company written evidence thereof reasonably requested by Borrower.
(f) Lender shall not (x) permit be required to demonstrate any such actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer on the Companywithout Lender’s books and recordsconsent. This provision shall apply to every Transfer regardless of whether voluntary or not, (y) issue a new certificate or instrument representing any of the Company Shares whether or permit any book entries for any such Transfer with respect not Lender has consented to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementprevious Transfer.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower, Guarantor and Sun in owning and operating properties such as any Individual Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of any Individual Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of any Individual Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of any Individual Property.
(b) Except for Permitted Transfers, Alternative Permitted Transfers described in Section 5.2.10(d) and a sale of the Property to the extent permitted under Section 5.2.10(e), without the prior written consent of Lender, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20. For the avoidance of doubt, prior notice to Lender and Lender’s consent shall not be required for any Permitted Transfer.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock, although Permitted Transfers thereof are not restricted; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests, although Permitted Transfers thereof are not restricted; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests, although Permitted Transfers thereof are not restricted; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests, although Permitted Transfers thereof are not restricted; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) In addition to Permitted Transfers which do not require notice to, or the consent of, Lender, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party (an “Alternative Permitted Transfer”); provided, however, no such Alternative Permitted Transfer which does not otherwise qualify as a Permitted Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Alternative Permitted Transfer which does not otherwise qualify as a Permitted Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Alternative Permitted Transfer. If after giving effect to any such Alternative Permitted Transfer which does not otherwise qualify as a Permitted Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Alternative Permitted Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. Anything contained herein to the contrary notwithstanding, at all times, (i) Guarantor must continue to own, directly or indirectly, at least a 99.5% legal and beneficial interest in each Individual Borrower and (ii) Sun must continue to Control Guarantor, each Principal and each Individual Borrower (through its ownership of each Principal), and own, directly or indirectly, at least a 51% legal and beneficial interest in Guarantor and a 100% legal and beneficial interest in each Principal. For the avoidance of doubt, any Transfer which qualifies as both a Permitted Transfer and Alternative Permitted Transfer shall be deemed to be a Permitted Transfer and not require prior notice to, or the consent of, Lender. Upon request from Lender, Borrower shall provide to Lender a list of the direct owners of the limited partnership interests of Guarantor and, to the extent known or available to Borrower, the indirect owners of the limited partnership interests of Guarantor.
(e) No Transfer of the Property and assumption of the Loan shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. Otherwise, Lender’s consent to a Transfer of the Properties and assumption of the Loan shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower or Transferee shall pay Lender a transfer fee equal to one-quarter of one percent (0.25%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell (including short sales)voluntary or involuntary, transfer, tender, assign, exchange, pledge, encumber made an assignment for the benefit of creditors or otherwise dispose taken advantage of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Sharesinsolvency act, or any interest thereinact for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents from and after the date of such Transfer in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to any PersonLender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(iiviii) enter into any voting arrangementTransferee, whether by proxy, voting agreement Transferee’s Principals and Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.23 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) If required by Lender, Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Shares, ratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(iiixi) grant any proxies or powers of attorney with respect Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender;
(xii) Borrower or Transferee shall deliver, (iv) agree at its sole cost and expense, an endorsement to divest itself the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the related Individual Property and naming the Transferee as owner of such Individual Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, such Individual Property shall not be subject to any voting rights additional exceptions or liens other than those contained in the Subject Shares or Title Policy issued on the date hereof and the Permitted Encumbrances;
(vxiii) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby Each Individual Property shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale managed by Shareholder’s trustee in any bankruptcy, or a sale Qualified Manager pursuant to a purchaser Replacement Management Agreement; and
(xiv) Borrower or Transferee, at any creditor’s or court sale), the transferee (which term, as used hereinits sole cost and expense, shall include any deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and all transferees substance to Lender. Immediately upon a Transfer to such Transferee and subsequent transferees the satisfaction of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsabove requirements, liabilities the named Borrower and rights Guarantor herein shall be released from all liability under this Agreement, which shall continue in full force the Note, the Mortgages and effect for the Termother Loan Documents accruing after such Transfer. The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company written evidence thereof reasonably requested by Borrower.
(f) Lender shall not (x) permit be required to demonstrate any such actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer on the Companywithout Lender’s books and records, (y) issue a new certificate or instrument representing any consent in violation of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its members, stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners, as applicable, owning the Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall notnot (and shall not permit any Mortgage Borrower to), and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Collateral, the Properties or any part thereof or any legal or beneficial interest therein, or (ii) permit a Sale or Pledge of any interest in any Restricted Party or (iii) incur Indebtedness (other than the Indebtedness permitted pursuant to the terms of this Agreement) (collectivelyany of the foregoing transactions, a “Transfer”), or enter into any contractother than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof, option(B) the Loan Documents and (C) the Mortgage Loan and the granting of security interests pursuant to the Mortgage Loan Documents.
(c) A Transfer shall include, derivativebut not be limited to, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementi) with respect an installment sales agreement wherein Borrower agrees to a Transfer of, any of sell the Company SharesCollateral, or any interest thereinpart thereof, or any Mortgage Borrower agrees to sell any PersonProperty or any part thereof, for a price to be paid in installments; (ii) enter into an agreement by any voting arrangementMortgage Borrower leasing all or substantially all of the Property or Properties owned by such Mortgage Borrower for other than actual occupancy by a space tenant thereunder, whether or a sale, assignment or other transfer of, or the grant of a security interest in, such Mortgage Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer, and so long as all of the applicable conditions contained therein shall have been fulfilled, such transfer may occur without consent from Lender: (i) transfers of shares in Xxxx Credit Property Trust I, Inc. or Xxxx Credit Property Trust III, Inc. or (ii) transfers of ownership interests in any Restricted Party and ownership interests in any member, partner or shareholder of any Restricted Party to any Affiliate or subsidiary of a Restricted Party, provided that, at all times, Xxxxxxxxxxx X. Xxxx, Xxxx Holdings Corporation, Xxxx Credit Property Trust I, Inc. or Xxxx Credit Property Trust III, Inc. continues to Control the Restricted Party, provided after giving effect to such transfer, (I) the Person receiving such interest and each Restricted Party who shall exist following such transfer, shall be able to satisfy (x) the requirements and representations set forth in Sections 5.2.10(f)(v), (vii) and (viii) of the Mortgage Loan Agreement, and Section 4.1.35 hereof, in each case mutatis, mutandis and if the individual or individuals who have direct or indirect Control over the Person to whom such interests are to be transferred is someone other than Xxxxxxxxxxx X. Xxxx, such individuals shall be reasonably acceptable to Lender and (II) Borrower shall execute, or cause the applicable Person or Persons to execute, without any cost or expense to Lender, such documents and agreements as Lender may reasonably require to evidence and effectuate said transfer and deliver such legal opinions as Lender may require, including, without limitation, a pledge substantially in the form of the Pledge Agreement, a new UCC Title Insurance Policy and a new mezzanine endorsement to the Owner’s Title Policy, new UCC Financing Statements or amendments to any existing UCC Financing Statements, new Certificates evidencing the Pledged Company Interests, and any other ancillary documents substantially similar to the Loan Documents executed on the Closing Date as Lender may reasonably require, all in form and substance satisfactory to Lender. It shall be a condition of any such transfer specified in the foregoing clause (ii) that Lender shall have received written confirmation from the parties to the Management Agreement that provides that all Properties, which are the subject of any such transfer, shall have been removed from the application of such Management Agreement. Lender agrees that, in connection with any transfer contemplated by proxythe foregoing clause (ii), voting agreement Borrower shall have the right to substitute a replacement guarantor for Guarantor under the Loan Documents, provided that the replacement guarantor (A) shall have a net worth and liquidity sufficient to meet the requirements set forth in Section 5.2 of the Guaranty, (B) shall have made the representations and met the requirements set forth in Sections 4.1.1, 4.1.2, 4.1.3, 4.1.11, 4.1.18, 4.1.37, 4.1.35 hereof and Section 5.2.10(f)(v), (vii) and (viii) of the Mortgage Loan Agreement, which apply to Guarantor, such that the replacement guarantor shall be deemed to make such representations and fulfill such requirements, mutatis, mutandis, (C) shall not have been a party to any bankruptcy proceedings, voluntary or otherwiseinvoluntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of such transfer, (D) shall not be involved in any pending or threatened material litigation or regulatory action which is not reasonably acceptable to Lender, and (E) shall not have defaulted under its obligations with respect to any Indebtedness in a manner which is not reasonably acceptable to Lender. Upon the execution and delivery of any documents necessary to consummate such substitution, the Subject Sharesoriginal Guarantor shall be released from all liability and obligations under the Guaranty, (iii) grant any proxies or powers of attorney the Environmental Indemnity and the other Loan Documents with respect to any acts or omissions after any such replacement guarantor shall have executed and delivered a replacement Guaranty and fulfilled all of the Subject Shares, (iv) agree to divest itself of any voting rights conditions set forth in the Subject Shares immediately preceding sentence.
(e) Lender shall not be required to demonstrate any actual impairment of its security or (v) commit any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcynot, or a sale whether or not Lender has consented to a purchaser at any creditor’s or court sale), previous Transfer.
(f) In the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject event Mortgage Borrowers desire to transfer all of the restrictions, liabilities and rights under this Properties pursuant to Section 5.2.10(f) of the Mortgage Loan Agreement, Borrower must provide written notice of such proposed transfer to Lender contemporaneously with Mortgage Borrowers’ notification of Mortgage Lender pursuant to Section 5.2.10(f) of the Mortgage Loan Agreement, together with such information concerning the transferee(s) and the transferee(s)’ direct and indirect owners and Affiliates as Mortgage Borrowers are required to deliver to Mortgage Lender pursuant to Section 5.2.10(f) of the Mortgage Loan Agreement. Such transferee(s) and the owners of the equity interests in the transferee(s), who shall replace the Borrower, shall have an aggregate net worth and liquidity acceptable to the Lender in its sole discretion, and the Lender must otherwise approve (which approval may be withheld in Lender’s sole discretion) all other aspects of (i) such transferees and owners of the equity interests in such transferees and (ii) such transfer and the related elements that might affect Lender’s security interest in such transferee(s) and the owner(s) of equity interests in such transferee(s). Lender shall continue have fifteen (15) days from receipt of Borrower’s notice to approve of or object to the proposed transfer. If Lender objects to the proposed transfer within said fifteen (15) days, Borrower shall not permit Mortgage Borrowers to transfer the Properties in full force accordance with Section 5.2.10(f) of the Mortgage Loan Agreement. If Lender fails to respond within said fifteen (15) days, and effect Borrower sends a second request for approval containing a legend clearly marked in not less than fourteen (14) point bold fact type, underlined, in all capital letters “REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN FIFTEEN (15) DAYS”, Lender shall be deemed to have approved such transfer of the TermProperties if Lender fails to respond to such second written request before expiration of such fifteen (15) day period. The Upon a transfer in accordance with Section 5.2.10(f) of the Mortgage Loan Agreement, Borrower shall execute, or cause the applicable Person or Persons to execute, without any cost or expense to Lender, such documents and agreements as Lender may reasonably require to evidence and effectuate said transfer and deliver such legal opinions as Lender may require, including, without limitation, a pledge substantially in the form of the Pledge Agreement, a new UCC Title Insurance Policy and a new mezzanine endorsement to the Owner’s Title Policy, new UCC Financing Statements or amendments to any existing UCC Financing Statements, new Certificates evidencing the Pledged Company agrees that if Shareholder attempts to TransferInterests, vote or provide and any other Person with ancillary documents substantially similar to the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer Loan Documents executed on the Company’s books Closing Date as Lender may reasonably require, all in form and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect substance satisfactory to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementLender.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Cole Credit Property Trust III, Inc.)
Transfers. Shareholder (a) Each Borrower acknowledges that Lender has examined and relied on the experience of each Borrower and its members, stockholders, general partners, members, principals and (if any Borrower is a trust) beneficial owners, as applicable, owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrowers’ ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Each Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrowers default in the repayment of the Debt or the performance of the Other Obligations contained in the Loan Documents, Lender can recover the Debt by a sale of one or more of the Properties.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, no Borrower shall, and no Borrower shall notpermit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or Properties owned by such Borrower or any part thereof or any legal or beneficial interest therein, or (ii) permit a Sale or Pledge of any interest in any Restricted Party or (iii) incur Indebtedness (other than the Indebtedness permitted pursuant to the terms of this Agreement) (collectivelyany of the foregoing transactions, a “Transfer”), other than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof, (B) the Loan Documents and (C) the Mezzanine Loan and the granting of security interests pursuant to the Mezzanine Loan Documents.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein any Borrower agrees to sell the Property or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company SharesProperties owned by such Borrower, or any part thereof, for a price to be paid in installments; (ii) an agreement by any Borrower leasing all or substantially all of the Property or Properties owned by such Borrower 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 thereinin, such Borrower’s right, title and interest in and to any PersonLeases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer, and so long as all of the applicable conditions contained therein shall have been fulfilled, such transfer may occur without consent from Lender: (i) transfers of shares in Xxxx Credit Property Trust I, Inc. or Xxxx Credit Property Trust III, Inc., (ii) enter into transfers of ownership interests in any voting arrangementRestricted Party and ownership interests in any member, whether partner or shareholder of any Restricted Party to any Affiliate or subsidiary of a Restricted Party, provided that, at all times, Xxxxxxxxxxx X. Xxxx, Xxxx Holdings Corporation, Xxxx Credit Property Trust I, Inc. or Xxxx Credit Property Trust III, Inc. continues to Control the Restricted Party provided after giving effect to such transfer, the Person receiving such interest and each Restricted Party who shall exist following such transfer, shall be able to satisfy the requirements and representations set forth in Section 4.1.35, and Section 5.2.10(f), (v), (vii) and (viii), mutatis, mutandis and if the individual or individuals who have direct or indirect Control over the Person to whom such interests are to be transferred is someone other than Xxxxxxxxxxx X. Xxxx, such individuals shall be reasonably acceptable to Lender, or (iii) the pledge of equity interests in Borrowers and Principal in connection with the Mezzanine Loan, and the exercise of any rights or remedies of Mezzanine Lender (including foreclosure and an assignment in lieu of foreclosure), as applicable, in accordance with and subject to the terms of the Intercreditor Agreement. It shall be a condition of any such transfer specified in the foregoing clause (ii) that Lender shall have received a written confirmation from the parties to the Management Agreement that provides that all Properties, which are the subject of any such transfer or which are directly or indirectly owned by proxythe Restricted Party and/or any member, voting agreement partner or otherwiseshareholder of any Restricted Party whose interest were the subject of any such transfer, shall have been removed from the application of such Management Agreement. Lender agrees that, in connection with any transfer contemplated by the foregoing clause (ii), Borrower shall have the right to substitute a replacement guarantor for Guarantor under the Loan Documents, provided that the replacement guarantor (A) shall have a net worth and liquidity sufficient to meet the requirements set forth in Section 5.2 of the Guaranty, (B) shall have made the representations and met the requirements set forth in Sections 4.1.1, 4.1.2, 4.1.3, 4.1.11, 4.1.18, 4.1.37, 4.1.35 and Section 5.2.10(f)(v), (vii) and (viii), which apply to Guarantor, such that the replacement guarantor shall be deemed to make such representations and fulfill such requirements mutatis, mutandis, (C) shall not have been a party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of such transfer, (D) shall not be involved in any pending or threatened material litigation or regulatory action which is not reasonably acceptable to Lender, and (E) shall not have defaulted under its obligations with respect to any Indebtedness in a manner which is not reasonably acceptable to Lender. Upon the execution and delivery of any documents necessary to consummate such substitution, the Subject Sharesoriginal Guarantor shall be released from all liability and obligations under the Guaranty, (iii) grant any proxies or powers of attorney the Environmental Indemnity and the other Loan Documents with respect to any acts or omissions after any such replacement guarantor shall have executed and delivered a replacement Guaranty and fulfilled all of the Subject Sharesconditions set forth in the immediately preceding sentence.
(e) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(f) No consent to any assumption of the Loan shall occur on or before the end of the Lockout Period. Thereafter, Lender’s consent to a one (1) time Transfer of all of the Properties (which may be to more than one (1) transferee, provided each such transferee shall either be Transferee’s Sponsor or an Affiliate of Transferee’s Sponsor and assumption of the Loan shall not be unreasonably withheld provided that Lender receives not less than sixty (60) days prior written notice of such Transfer and no Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrowers shall pay Lender a transfer fee equal to one percent (1%) of the Outstanding Principal Balance at the time of such Transfer;
(ii) Borrowers shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The Persons comprising the proposed transferees (collectively, the “Transferee”), Transferee’s Principal or Transferee’s Sponsor must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to each of the Properties, which expertise shall be reasonably determined by Lender;
(iv) agree to divest itself Transferee, Transferee’s principal and the owner of any voting rights equity interests in Transferee who shall replace the Subject Shares or original Mezzanine Borrower as contemplated in clause (vxv) commit or agree to take any below (“Replacement Mezzanine Borrower”) shall, as of the foregoing actions. Shareholder agrees that any Transfer date of Subject Shares not permitted hereby shall be null such transfer, have an aggregate net worth and void ab initio liquidity reasonably acceptable to Lender and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.Mezzanine Lender;
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members and (if Borrower is a trust) beneficial owners, as applicable, and principals of Borrower in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Properties.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than, in either case, to the extent that such Transfer constitutes a Permitted Transfer. Any Transfer made without Lender’s prior written consent (to the extent that such consent is required pursuant to this Section 5.2.10) shall be null and void. For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, the Sale or Pledge of a direct or indirect interest in an Excluded Entity shall not constitute a Transfer and may be effectuated by the applicable Person without the consent of, or any notice to, Lender.
(c) A Transfer shall include, but not be limited to, (i) directly an installment sales agreement wherein Borrower agrees to sell an Individual Property or indirectly offerany part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of an Individual Property for other than actual occupancy by a space Tenant thereunder or a sale, sell assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (including short salesiii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10 but subject to the final two sentences of this Section 5.2.10(d), transferLender’s consent shall not be required in connection with one or a series of Transfers, tenderof not more than forty-nine percent (49%) of the stock, assignlimited partnership interests or membership interests (provided that, exchangein the case of any multi-member Restricted Party, pledge, encumber or otherwise dispose excluding any interests of (including by gift, merger or operation of lawthe managing member) (collectivelyas the case may be) in a Restricted Party; provided, “Transfer”)however, or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementi) with respect to no such Transfer shall result in the change of Control in a Transfer of, any of the Company Shares, or any interest therein, to any PersonRestricted Party, (ii) enter as a condition to each such Transfer, Lender shall receive not less than thirty (30) days’ prior written notice of such proposed Transfer, and (iii) if after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender and, following a Securitization, acceptable to the Rating Agencies. Notwithstanding anything contained in this Section 5.2.10(d), no Transfer of any direct ownership interests in any Borrower, any SPE Constituent Entity, any Mezzanine Borrower or any Mezzanine SPE Constituent Entity shall be permitted. In addition, at all times, Guarantor must continue to Control Borrower, each SPE Constituent Entity, Mezzanine Borrower and each Mezzanine SPE Constituent Entity and own, directly or indirectly, at least a fifty-one percent (51%) legal and beneficial interest in Borrower, each SPE Constituent Entity, Mezzanine Borrower and each Mezzanine SPE Constituent Entity.
(e) No Transfer of all of the Properties and assumption of the Loan shall occur during the period that is sixty (60) days prior to a Securitization or the period that is sixty (60) days after a Securitization. Otherwise, Lender’s consent to a one (1) time Transfer of all of the Properties and assumption of the entire Loan by the proposed Transferee (the “Transferee”) shall be given in Lender’s sole discretion provided that Lender receives sixty (60) days’ prior written notice of such Transfer and no Event of Default has occurred and is continuing at the time Lender receives such notice and at the time such Transfer is consummated. In determining whether to consent to any proposed Transfer pursuant to this Section 5.2.10(e), Lender may require or consider, without limitation, the following actions and matters:
(i) Borrower shall pay Lender a fee equal to one-half percent (0.5%) of the outstanding principal balance of the Loan at the time of such Transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) Transferee or Transferee’s Sponsors must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Sponsors shall, as of the date of such Transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Sponsors and all other entities which may be owned or Controlled directly or indirectly by Transferee’s Sponsors (“Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Sponsors or any voting arrangementRelated Entities which is not reasonably acceptable to Lender;
(viii) Transferee, whether by proxy, voting agreement Transferee’s Sponsors and any Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s SPE Constituent Entities must be able to make all of the Subject Sharesrepresentations set forth in Sections 4.1.30, 4.1.35, and 4.1.38, and perform all of the covenants set forth in Sections 5.1.27, 5.1.29 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s SPE Constituent Entities shall deliver (iiiA) grant any proxies or powers all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender, and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) Following a Securitization, if required by Lender, Transferee shall be approved by the Rating Agencies rating the Loan, which approval, if required by Lender, shall take the form of attorney a Rating Agency Confirmation with respect to such Transfer;
(xi) Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty and the Environmental Indemnity or executed a replacement guaranty and/or environmental indemnity reasonably satisfactory to Lender;
(xii) Borrower shall deliver, (iv) agree at its sole cost and expense, an endorsement to divest itself of any voting rights in each Title Insurance Policy, as modified by the Subject Shares or (v) commit or agree to take any assumption agreement, confirming the Lien of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, Mortgages as a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to valid first lien on all of the restrictionsProperties and naming the Transferee as owner of all of the Properties, liabilities which endorsements shall insure that, as of the date of the recording of the assumption agreement, the applicable Individual Property shall not be subject to any additional exceptions or Liens other than those contained in the applicable Title Insurance Policy issued on the Closing Date and rights the Permitted Encumbrances;
(xiii) Each Individual Property shall be managed by Qualified Manager (and, if the Qualified Manager managing any one or more Individual Properties prior to the Transfer is being replaced, the replacement Qualified Manager shall manage such Individual Properties pursuant to a Replacement Management Agreement);
(xiv) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender (A) an Additional Insolvency Opinion in respect of such Transfer satisfactory in form and substance to Lender and (B) a fraudulent conveyance opinion in respect of such Transfer, each of which opinions may be relied upon by Lender and the Rating Agencies with respect to the proposed Transfer; and
(xv) If any Mezzanine Loan is still outstanding, the related Mezzanine Borrower shall have complied with all of the terms and conditions set forth in the related Mezzanine Loan Documents with respect to the Transfer and to effectuate the assumption of such Mezzanine Loan. Immediately upon the consummation of a Transfer pursuant to this Section 5.2.10(e) (provided that Lender has consented thereto in accordance with the foregoing), each Borrower and Guarantor shall be released from all liability under this Agreement, which shall continue in full force the Note, the Mortgages and effect for the Termother Loan Documents accruing after the date of such Transfer (other than to the extent such liability is expressly stated herein to survive). The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with written evidence thereof if the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company same is reasonably requested by Borrower.
(f) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon the consummation of a purported Transfer that is prohibited (xand as such, null and void) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect pursuant to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementSection 5.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its management, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Properties.
(b) Without the prior written consent of Lender, and except for (a) Permitted Encumbrances (with respect to the Properties), (b) the release of any Individual Property in accordance with Section 2.5, and (c) to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party.
(c) A Transfer shall include, but not be limited to, (i) directly an installment sales agreement wherein Borrower agrees to sell one or indirectly offermore Individual Properties or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of any Individual Property for other than actual occupancy by a space Tenant thereunder or a sale, sell assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (including short salesiii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non managing membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with (i) one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party or (ii) a Permitted Transfer; provided, however, no such Transfer shall result in the change of Control in a Restricted Party (Lender agreeing that any Transfer from Gramercy Sponsor or its wholly-owned Affiliates to Gxxxxxxx Sponsor or its wholly-owned Affiliates and vice versa shall not, so long as the last sentence of this clause (d) is satisfied, constitute a change of Control in a Restricted Party), transferand as a condition to each such Transfer, tender, assign, exchange, pledge, encumber or otherwise dispose (i) Lender shall receive not less than ten (10) days’ prior written notice of such proposed Transfer (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) provided that no advance notice shall be required with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer Transfers by Passive Owners which are not Affiliated with respect to any Company Shares that are in uncertificated form Guarantor or (z) record Transfers by Passive Owners which are Affiliated with Guarantor solely by reason of being a director or officer of a Guarantor or a Person that is Affiliated with Guarantor) and (ii) such voteTransfer will not result in a default or event of default under any Ground Lease or the Master Lease, nor shall such Transfer cause, or give the Master Tenant the right to obtain, a reduction in each casethe term of the Master Lease with respect to all or any portion of the Properties. If after giving effect to any such Transfer, unless more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and until Shareholder shall have complied with its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the terms Closing Date, Borrower shall, no less than five (5) days prior to the effective date of this Agreementany such Transfer, deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender and the Approved Rating Agencies. In addition, at all times, either Gramercy Sponsor, Gxxxxxxx Sponsor, or both, must continue to (1) Control Borrower and Guarantor and (2) own, directly or indirectly, at least a fifty percent (50%) legal and beneficial interest in Borrower and Guarantor.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Xxxxxx has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Xxxxxxxx’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Xxxxxx has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Xxxxxx can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.9 or in connection with the release of any Individual Property in accordance with this Agreement, Borrower shall notnot and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options to purchase with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Property or any part thereof or any legal or beneficial interest therein, to any Person, (ii) enter into into, or permit the Property to be subject to, any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject SharesPACE Debt, (iii) grant any proxies permit a Sale or powers Pledge of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee an interest in any bankruptcyRestricted Party, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such votethan, in each case, unless and until Shareholder shall have complied (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the terms provisions of Section 5.1.18 and customary occupancy agreements with short-term hotel guests, and (B) Permitted Transfers and Permitted Indebtedness, or (iv) Borrower dividing into two or more separate and distinct entities.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell any Individual Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of any Individual 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non managing membership interests or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.9, the following Transfers shall not require the consent of Lender or the payment of any transfer fee:
(i) The Sale or Pledge, in one or a series of transactions, of the direct or indirect equity interests in Borrower or direct or indirect interests in any Restricted Party (excluding the direct interests in Borrower or Mezzanine Borrower, other than, for the avoidance of doubt, a Permitted Transfer set forth in clause (m) of the definition of “Permitted Transfer”); provided, that, (A) after giving effect to such Sale or Pledge (and in the case of a Sale or Pledge that is a pledge for security purposes, any subsequent foreclosure thereon), (x)
(1) Borrower and Principal (on an unencumbered and look through basis) are indirectly Controlled and at least 50.1% owned by XXXXX OP and/or MGP OP, provided that (I) with respect to XXXXX OP, XXXXX OP is owned, managed or Controlled by XXXXX, a Qualified Advisor, a Qualified Transferee or a Public Vehicle and (II) with respect to MGP OP, MGP OP is managed and Controlled by MGP, a Public Vehicle or a Qualified Transferee, or (y) following a Public Sale, a Public Vehicle or, following a Permitted Assumption, the applicable Qualified Transferee (1) shall own not less than fifty-one percent (51%) of the economic and direct or indirect legal and beneficial interests in Borrower, Guarantor and Principal (on an unencumbered and look through basis) and (2) Control Borrower, Guarantor and Principal, (B) upon the written request of Xxxxxx, Borrower shall deliver to Lender notice of each sale described in this Section 5.2.9(d)(i) not less than ten (10) days following such request, (C) no Sale or Pledge of any direct interest in any Borrower, Mezzanine Borrower or Principal shall be permitted (other than, for the avoidance of doubt, a Permitted Transfer set forth in clause (m) of the definition of “Permitted Transfer”), (D) no Individual Borrower or Principal shall fail to be a Special Purpose Entity by reason of such Sale or Pledge, (E) for so long as the Loan shall remain outstanding (I) no pledge of any direct interests in any Restricted Pledge Party shall be permitted (other than pledges securing the Loan) and except that a pledge of the direct ownership interests in the most upper tier Restricted Pledge Party shall be permitted (other than pledges securing the Loan or Mezzanine Loan) if such pledge directly or indirectly secures indebtedness that is also directly or indirectly secured by substantial assets other than the Property and (II) no Restricted Pledge Party shall issue preferred equity that has the characteristics of mezzanine debt (such as a fixed maturity date, pledged ownership interests as security, regular payments of interest, a fixed rate of return and rights of the equity holder to demand repayment of its investment), and (F) with respect to any transferee that, as a result of such transfer, will hold a twenty percent (20%) or greater direct or indirect interest in, or control, Borrower and/or Principal (and such transferee owned less than twenty percent (20%) of the direct or indirect interest in Borrower and/or Principal or did not control Borrower and/or Principal on the Closing Date), Lender shall receive satisfactory “know your customer” compliance screening searches consisting of a search and evaluation of (x) OFAC sanctions and other government required sanctions lists, (y) negative news screening of such holders, if any, associated with material derogatory information that could reasonably result in anti-money laundering risk to Lender related to terrorist or other financial crimes and (z) such statutes and other information reasonably required by Xxxxxx to confirm that Borrower and/or Principal, and such transferee is not an Embargoed Person (Xxxxxx agrees to use diligent and commercially reasonable efforts to complete such “know your customer” diligence in accordance with this clause (F) within fifteen (15) Business Days after Xxxxxx receives the requested information necessary to conduct such diligence). If after giving effect to any such Sale or Pledge, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender and the Approved Rating Agencies. Notwithstanding anything to the contrary contained in this Agreement, (x) no notice to, or consent of, Lender shall be required in connection with any Sale or Pledge of direct or indirect interests in any Excluded Entity or by and among any Excluded Entity and (y) no Restricted Pledge Party (other than Borrower, Mezzanine Borrower or Principal) shall be restricted from any Sale or Pledge of its direct or indirect assets; provided such assets are not encumbered (or required to be encumbered) by the Loan or the Mezzanine Loan. In connection with a Sale or Pledge resulting in Guarantor no longer owning direct or indirect interests in Borrower, Principal or the Property, Guarantor shall be released as a guarantor under (I) the Guaranty for any acts occurring after such Sale or Pledge; provided that Borrower delivers a Substitute Guaranty from a Qualified Transferee that Controls Borrower or is under common Control with Borrower, which Substitute Guaranty shall include all liability for all such acts for which Guarantor was so released and (II) the Excess Cash Flow Guaranty, if any, provided that Borrower shall pay to Lender an amount equal to the Guaranteed Excess Cash Flow as of such date, which amounts shall be deposited by Lender into the Excess Cash Flow Reserve Account.
(ii) A Public Sale, provided, that (A) if after giving effect to any such Public Sale, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in any Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender and, to the extent a rated Securitization has occurred, the Approved Rating Agencies; (B) none of Borrower or Principal shall fail to be a Special Purpose Entity by reason of such sale, (C) no Transfer of any direct interest in Borrower or Principal, or for so long as the Mezzanine Loan remains outstanding, in the Mezzanine Borrower shall be permitted, (D) no Restricted Pledge Party shall issue preferred equity that has the characteristics of mezzanine debt (such as a fixed maturity date, pledged ownership interests as security, regular payments of interest, a fixed rate of return and rights of the equity holder to demand repayment of its investment), (E) with respect to any transferee that, as a result of such transfer, will hold a twenty percent (20%) or greater direct or indirect interest in, or control, Borrower and/or Principal, (and such transferee owned less than twenty percent (20%) of the direct or indirect interest in Borrower and/or Principal, or did not control Borrower and/or Principal, on the Closing Date), Lender shall receive satisfactory “know your customer” compliance screening searches consisting of a search and evaluation of
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender and, to the extent that the Mezzanine Loan remains outstanding, the Mezzanine Lender in accordance with the Mezzanine Loan Agreement, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or any interest of Borrower in the Loan or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20 and (B) Permitted Transfers.
(c) A Transfer shall include (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of any Individual 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non managing membership interests or the creation or issuance of new non managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and, to the extent that the Mezzanine Loan remains outstanding, no such Transfer shall occur without the prior written consent of Mezzanine Lender in accordance with the Mezzanine Loan Agreement, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. Borrower shall pay any and all reasonable out-of-pocket costs and expenses incurred in connection with such Transfers (including Lender’s counsel fees and disbursements and any fees and expenses of the Rating Agencies).
(e) No Transfer of the Property (or any portion thereof) and assumption of the Loan shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. Without limiting Lender’s discretion to approve or disapprove any request for a waiver of the prohibition against Transfers, Lender specifically reserves the right to condition its consent to any waiver of a prohibited Transfer upon satisfaction of the following minimum conditions:
(i) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to each Individual Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including short salesby entering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not acceptable to Lender;
(viii) Transferee, Transferee’s Principals and Related Entities shall not have defaulted under its or their obligations with respect to any other Indebtedness in a manner which is not acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.23 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) If required by Lender, Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the ratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(xi) Prior to any release of Guarantor, one (1) or more substitute guarantors acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender.
(xii) Borrower shall deliver, at its sole cost and expense, an endorsement to each Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on each Individual Property and naming the Transferee as owner of each Individual Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, each Individual Property shall not be subject to any additional exceptions or liens other than those contained in the Title Policies issued on the date hereof and the Permitted Encumbrances;
(xiii) Each Individual Property shall be managed by Qualified Manager pursuant to a Replacement Management Agreement;
(xiv) The Property meets all of the Lender’s underwriting standards related to its financial condition, cash flow, operating income, physical condition, management and operation;
(xv) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender; and
(xvi) If the Mezzanine Loan remains outstanding, Mezzanine Lender has approved such Transfer.
(f) Notwithstanding any provision in this Section 5.2.10 to the contrary, limited partnership or membership interests, as applicable, in Borrower may be transferred without Lender’s consent and without application of the fee set forth in Section 5.2.10(e)(i) so long as Mezzanine Lender’s prior approval has been obtained in accordance with the Mezzanine Loan Agreement (to the extent that the Mezzanine Loan remains outstanding) and: (i) among limited partners or members, as applicable, of Borrower who are limited partners or members, as applicable, of Borrower as of the date of this Agreement (each a “Current Owner”), transferand (ii) to immediate family members (which shall be limited to a spouse, tenderparent, assignchild and grandchild (each, exchangean “Immediate Family Member”)), pledgeof any Current Owner or to trusts formed for the benefit of Immediate Family Members of such Current Owner for bona fide estate planning purposes (each, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, an “Additional Permitted Transfer”), provided each of the following conditions is satisfied: (A) no Event of Default has occurred and no event has occurred that with notice and/or the passage of time, or enter into both, would constitute an Event of Default; (B) Lender has received Borrower’s notice of the Additional Permitted Transfer no less than 30 days prior to the commencement of such transfer; (C) no Indemnitor or Guarantor shall be released from any contractguaranty or indemnity agreement by virtue of the Additional Permitted Transfer; (D) Borrower shall be responsible for the costs and expenses of documenting the Additional Permitted Transfer; (E) Borrower shall reimburse Lender for all actual costs and expenses incurred by Lender in connection with the Additional Permitted Transfer, optionwhether or not consummated; (F) once the Additional Permitted Transfer is complete, derivativethe persons with Control of Borrower and management of the Property are the same persons who have such Control and management rights immediately prior to the Additional Permitted Transfer; (G) Borrower shall furnish Lender copies of any documentation executed in connection with the Additional Permitted Transfer promptly after execution thereof; (H) Borrower shall have delivered satisfactory evidence to Lender that, hedgingfollowing the Additional Permitted Transfer, swapBorrower shall continue to comply with the provisions of Section 4.1.30 hereof; and (I) upon Lender’s request, forward delivery of an Additional Insolvency Opinion acceptable to Lender. Lender shall not be required to demonstrate any actual impairment of its security or other agreementany increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, understanding or other arrangement (including whether or not Lender has consented to any profit sharing arrangement) with respect previous Transfer. Notwithstanding the foregoing, the foreclosure by Mezzanine Lender under the Mezzanine Loan of the interests pledged under the Mezzanine Pledge Agreement, subject in all respects to the Mezzanine Intercreditor Agreement, shall not be deemed to be a Transfer ofin violation of this Section 5.2.10. Notwithstanding anything to the contrary contained in this Section 5.2.10, any for so long as the Mezzanine Loan is outstanding, Mezzanine Borrower must at all times directly own one hundred percent (100%) of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights equity interests in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementBorrower.
Appears in 1 contract
Transfers. Shareholder (a) Borrowers acknowledge that Lender has examined and relied on the experience of Borrowers and their direct and indirect members in owning and operating the Collateral and Mortgage Borrowers in agreeing to make the Loan, and will continue to rely on Borrowers’ ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Additionally, Borrowers acknowledge that Lender has examined and relied on the experience of Mortgage Borrowers and their general partners, members, principals and (if any Mortgage Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Properties and in owning intellectual property such as the IP, in agreeing to make the Loan, and will continue to rely on Mortgage Borrowers’ ownership of the Properties and the IP as a means of maintaining the value of the Properties and the IP and, therefore, indirectly the value of the Collateral, as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrowers acknowledge that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrowers default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrowers shall not, and shall not permit any Transfer Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangelicense, pledgegrant options with respect to, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) any Property or any part thereof or any legal or beneficial interest therein, or any IP or any part thereof or any legal or beneficial interest therein, or the Collateral or any part thereof or any legal or beneficial interest therein; or (collectivelyii) permit a Sale or Pledge of any interest in any Transfer Restricted Party (any of the actions in the foregoing clauses (i) or (ii), a “Transfer”), other than, notwithstanding anything to the contrary contained in this Section 5.2.10:
(A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof;
(B) the pledge of the membership interests in each Mortgage Borrower as collateral for the First Mezzanine Loan and, if applicable, the exercise of remedies by First Mezzanine Lender including, without limitation, any Transfer of all or enter into a portion of such membership interests in connection with a foreclosure, strict foreclosure, public or private sale or transfer in lieu of foreclosure under the First Mezzanine Loan Documents, provided that any contractsuch exercise of remedies is performed in accordance with and subject to the conditions and restrictions set forth in the Intercreditor Agreement and as a condition precedent to any foreclosure, optionstrict foreclosure, derivativepublic or private sale or transfer in lieu of foreclosure of such membership interests the First Mezzanine Lender shall pay to Mortgage Lender a transfer fee in an amount equal to 1.00% of the sum of the Reduced Acquisition Loan Outstanding Principal Balance and the Construction Loan Outstanding Principal Balance;
(C) the pledge of the membership interests in each First Mezzanine Borrower as collateral for the Second Mezzanine Loan and, hedgingif applicable, swapthe exercise of remedies by Second Mezzanine Lender, forward including, without limitation, any Transfer of all or other agreementa portion of such membership interests in connection with a foreclosure, understanding strict foreclosure, public or other arrangement private sale or transfer in lieu of foreclosure under the Second Mezzanine Loan Documents, provided that any such exercise of remedies is performed in accordance with and subject to the conditions and restrictions set forth in the Intercreditor Agreement and as a condition precedent to any foreclosure, strict foreclosure, public or private sale or transfer in lieu of foreclosure of such membership interests the Second Mezzanine Lender shall pay to Mortgage Lender a transfer fee in an amount equal to 1.00% of the sum of the Reduced Acquisition Loan Outstanding Principal Balance and the Construction Loan Outstanding Principal Balance;
(including D) the pledge of the membership interests in each Second Mezzanine Borrower as collateral for the Loan and, if applicable, the exercise of remedies by Lender, including, without limitation, any profit sharing arrangementTransfer of all or a portion of such membership interests in connection with a foreclosure, strict foreclosure, public or private sale or transfer in lieu of foreclosure under the Loan Documents, provided that any such exercise of remedies is performed in accordance with and subject to the conditions and restrictions set forth in the Intercreditor Agreement and as a condition precedent to any foreclosure, strict foreclosure, public or private sale or transfer in lieu of foreclosure of such membership interests the Lender shall pay to Mortgage Lender a transfer fee in an amount equal to 1.00% of the sum of the Reduced Acquisition Loan Outstanding Principal Balance and the Construction Loan Outstanding Principal Balance;
(E) any Release Parcel Sale or an IP Sale, in each instance in accordance with respect the applicable provisions of Section 2.5 of the Mortgage Loan Agreement;
(F) Intentionally Deleted;
(G) any IP License or Adjacent Property IP License granted in accordance with the provisions of Section 5.1.26 hereof;
(H) the Permitted Encumbrances and Permitted IP Encumbrances;
(I) the issuance of new stock in, the merger or consolidation of, and/or the Sale or Pledge of the stock in, any Publicly Traded Entity who owns a direct or indirect ownership interest in any Transfer Restricted Party;
(J) the transfer of indirect ownership interests in any Mortgage Borrower in order to create one or more new mezzanine borrowers for any New Mezzanine Loan as contemplated under the Mortgage Loan Agreement; and
(K) the transfer by deed of any applicable Partial Release Parcel to a Subsidiary Transferee and the subsequent transfer of all of the membership interests held by Adjacent Borrower in such Subsidiary Transferee, in each instance in accordance with Section 2.5.1(f) of the Mortgage Loan Agreement; provided, however, that in the case of each of the foregoing clauses (A) — (K), such Transfer ofshall only be permitted hereunder if it does not violate any Legal Requirements, including specifically, but without limitation, any of the Company SharesGaming Laws, or suspend or terminate any interest thereinliquor license applicable to a Property.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein any Borrower or Mortgage Borrower, as applicable, agrees to sell a Property or any Personpart thereof, the IP, the Collateral or any part thereof for a price to be paid in installments; (ii) enter into an agreement by any voting arrangementMortgage Borrower leasing all or a substantial part of a Property for other than actual occupancy by a space tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect any Mortgage Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Transfer Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect to any such corporation’s stock or all the creation or issuance of the Subject Shares, new stock; (iv) agree to divest itself if a Transfer Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation, admission or addition of a general partner or the Sale or Pledge of the general partnership interest of any voting rights in general partner or any profits or proceeds relating to such partnership interest, or the Subject Shares Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit if a Transfer Restricted Party is a limited liability company, any merger or agree to take consolidation or the change, removal, resignation, admission or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the foregoing actions. Shareholder agrees that membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing or managing membership interests or the creation or issuance of new non-managing or managing membership interests; (vi) if a Transfer Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited the legal or beneficial interest in a Transfer may and should be enjoined. If any involuntary Transfer Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of any of the Company Shares occurs Manager (including, but not limited towithout limitation, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transfereean Affiliated Manager) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance accordance with this Agreement, the Company shall not Mortgage Loan Agreement and Section 5.1.22 hereof; or (xviii) permit any such Transfer on the Company’s books and records, (y) issue a new certificate deed-in-lieu or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect consensual foreclosure relating to any Company Shares that are in uncertificated form Property with or (z) record such vote, in each case, unless and until Shareholder shall have complied with for the terms benefit of this AgreementMortgage Lender or any Affiliate thereof.
Appears in 1 contract
Samples: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Transfers. Shareholder (a) Borrowers acknowledge that Lender has examined and relied on the experience of Borrowers and their direct and indirect members in owning and operating the Collateral and Mortgage Borrowers in agreeing to make the Loan, and will continue to rely on Borrowers’ ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Additionally, Borrowers acknowledge that Lender has examined and relied on the experience of Mortgage Borrowers and their general partners, members, principals and (if any Mortgage Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Properties and in owning intellectual property such as the IP, in agreeing to make the Loan, and will continue to rely on Mortgage Borrowers’ ownership of the Properties and the IP as a means of maintaining the value of the Properties and the IP and, therefore, indirectly the value of the Collateral, as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrowers acknowledge that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrowers default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrowers shall not, and shall not permit any Transfer Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangelicense, pledgegrant options with respect to, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) any Property or any part thereof or any legal or beneficial interest therein, or any IP or any part thereof or any legal or beneficial interest therein, or the Collateral or any part thereof or any legal or beneficial interest therein; or (collectivelyii) permit a Sale or Pledge of any interest in any Transfer Restricted Party (any of the actions in the foregoing clauses (i) or (ii), a “Transfer”), other than, notwithstanding anything to the contrary contained in this Section 5.2.10:
(A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof;
(B) the pledge of the membership interests in each Mortgage Borrower as collateral for the Loan and, if applicable, the exercise of remedies by Lender including, without limitation, any Transfer of all or enter into a portion of such membership interests in connection with a foreclosure, strict foreclosure, public or private sale or transfer in lieu of foreclosure under the Loan Documents, provided that any contractsuch exercise of remedies is performed in accordance with and subject to the conditions and restrictions set forth in the Intercreditor Agreement and as a condition precedent to any foreclosure, optionstrict foreclosure, derivativepublic or private sale or transfer in lieu of foreclosure of such membership interests the Lender shall pay to Mortgage Lender a transfer fee in an amount equal to 1.00% of the sum of the Reduced Acquisition Loan Outstanding Principal Balance and the Construction Loan Outstanding Principal Balance;
(C) the pledge of the membership interests in Borrower as collateral for the Second Mezzanine Loan and, hedgingif applicable, swapthe exercise of remedies by Second Mezzanine Lender, forward including, without limitation, any Transfer of all or other agreementa portion of such membership interests in connection with a foreclosure, understanding strict foreclosure, public or other arrangement private sale or transfer in lieu of foreclosure under the Second Mezzanine Loan Documents, provided that any such exercise of remedies is performed in accordance with and subject to the conditions and restrictions set forth in the Intercreditor Agreement and as a condition precedent to any foreclosure, strict foreclosure, public or private sale or transfer in lieu of foreclosure of such membership interests the Second Mezzanine Lender shall pay to Mortgage Lender a transfer fee in an amount equal to 1.00% of the sum of the Reduced Acquisition Loan Outstanding Principal Balance and the Construction Loan Outstanding Principal Balance;
(including D) the pledge of the membership interests in each Second Mezzanine Borrower as collateral for the Third Mezzanine Loan and, if applicable, the exercise of remedies by Third Mezzanine Lender, including, without limitation, any profit sharing arrangementTransfer of all or a portion of such membership interests in connection with a foreclosure, strict foreclosure, public or private sale or transfer in lieu of foreclosure under the Third Mezzanine Loan Documents, provided that any such exercise of remedies is performed in accordance with and subject to the conditions and restrictions set forth in the Intercreditor Agreement and as a condition precedent to any foreclosure, strict foreclosure, public or private sale or transfer in lieu of foreclosure of such membership interests the Third Mezzanine Lender shall pay to Mortgage Lender a transfer fee in an amount equal to 1.00% of the sum of the Reduced Acquisition Loan Outstanding Principal Balance and the Construction Loan Outstanding Principal Balance;
(E) any Release Parcel Sale or an IP Sale, in each instance in accordance with respect the applicable provisions of Section 2.5 of the Mortgage Loan Agreement;
(F) Intentionally Deleted;
(G) any IP License or Adjacent Property IP License granted in accordance with the provisions of Section 5.1.26 hereof;
(H) the Permitted Encumbrances and Permitted IP Encumbrances;
(I) the issuance of new stock in, the merger or consolidation of, and/or the Sale or Pledge of the stock in, any Publicly Traded Entity who owns a direct or indirect ownership interest in any Transfer Restricted Party;
(J) the transfer of indirect ownership interests in any Mortgage Borrower in order to create one or more new mezzanine borrowers for any New Mezzanine Loan as contemplated under the Mortgage Loan Agreement, including, without limitation, the transfers of ownership interests which were necessary to create Third Mezzanine Borrowers and the admission of a new member in each of Second Mezzanine Borrowers in connection with the creation of Third Mezzanine Borrowers; and
(K) the transfer by deed of any applicable Partial Release Parcel to a Transfer of, any Subsidiary Transferee and the subsequent transfer of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Sharesmembership interests held by Adjacent Borrower in such Subsidiary Transferee, (ivin each instance in accordance with Section 2.5.1(f) agree to divest itself of any voting rights the Mortgage Loan Agreement; provided, however, that in the Subject Shares or (v) commit or agree to take any case of each of the foregoing actions. Shareholder agrees that clauses (A) — (K), such Transfer shall only be permitted hereunder if it does not violate any Legal Requirements, including specifically, but without limitation, any Gaming Laws, or suspend or terminate any liquor license applicable to a Property.
(c) A Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (includinginclude, but not be limited to, (i) an installment sales agreement wherein any Borrower or Mortgage Borrower, as applicable, agrees to sell a sale by Shareholder’s trustee in Property or any bankruptcy, or a sale to a purchaser at any creditor’s or court sale)part thereof, the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this AgreementIP, the Company shall not (x) permit Collateral or any such Transfer on the Company’s books and records, (y) issue part thereof for a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect price to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.be paid in
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Properties.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10 or Section 2.6, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party (collectively, a “Transfer”), or enter into any contractother than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20.
(c) A Transfer shall include, optionbut not be limited to, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementi) with respect an installment sales agreement wherein Borrower agrees to a Transfer of, any of the Company Shares, sell an Individual Property or any interest therein, part thereof for a price to any Person, be paid in installments; (ii) enter into any voting arrangementan agreement by Borrower leasing all or a substantial part of an Individual Property for other than actual occupancy by a space tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager).
(d) Notwithstanding the foregoing, the provisions of this Section 5.2.10 shall not restrict:
(i) the Transfer, in the aggregate, of less than forty-nine percent (49%) of the direct or indirect interests in Sabre;
(ii) the merger or consolidation of Sabre or Sabre Holdings Corporation or the sale of all or substantially all of the Subject Sharesassets of, or interests in, Sabre or Sabre Holdings Corporation to a single transferee; provided that the surviving entity (if not Sabre) reaffirms all of the obligations under the Sabre Leases;
(iii) the Transfer of direct or indirect interests of Sabre to any entity that satisfies the Financial Criteria; or
(iv) agree the sale, transfer or issuance of stock in Sabre or Sabre Holdings Corporation (or any successor thereof); provided such stock is listed on the New York Stock Exchange or another nationally or internationally recognized stock exchange.
(e) Lender reserves the right to divest itself of any voting rights in condition the Subject Shares or (v) commit or agree to take any Transfer of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any Properties upon: (i) a modification of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale)terms hereof, the transferee (which termNote, the Mortgage or the other Loan Documents as used herein, shall include any and all transferees and subsequent transferees may be required by Lender to reflect the new ownership of the initial transferee) shall take Properties and hold such Company Shares subject to all assumption of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any Loan; (ii) an assumption of the Company Shares other than in strict compliance with this Agreement, the Company Note, the Mortgage and the other Loan Documents as so modified by the proposed transferee, subject to the provisions of Section 9.4 hereof; (iii) payment of all of actual, out-of-pocket fees and expenses incurred in connection with such Transfer including, without limitation, the cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses or required legal opinions; (iv) the payment of a non-refundable $5,000 application fee and an assumption fee equal to $250,000 for each Transfer of the Properties; (v) the delivery of a nonconsolidation opinion reflecting the proposed transfer satisfactory in form and substance to Lender; (vi) the proposed transferee’s continued compliance with the representations and covenants set forth in Section 4.1.30 and Section 5.2.9 hereof; (vii) 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 transfers are in accordance with the then current standards of Lender and the Rating Agencies; (viii) prior to any release of the Guarantor, a substitute guarantor reasonably acceptable to Lender (Lender agreeing that a Qualified Transferee or a Person that satisfies the Financial Criteria shall be satisfactory to Lender) shall have assumed the Guaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender (it being agreed that a guaranty in substantially the same form as is executed by the Guarantor on the Closing Date shall be satisfactory to Lender); and (ix) Lender’s approval of the transferee’s creditworthiness, reputation and qualifications of the transferee and, if the Loan has been included in a Securitization and if required by Lender, confirmation in writing from the Rating Agencies to the effect that such transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any applicable Securitization; provided that Lender shall be deemed to have approved the transferee and such confirmation shall not be required if (xA) permit the transferee is a Qualified Transferee or (B) the transferee is wholly-owned, directly or indirectly, by a successor tenant under the Sabre Leases which satisfies the Financial Criteria. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(f) If as a result of any direct or indirect Transfers of interests in Borrower or any Principal (regardless of whether Lender’s consent is required in connection therewith) more than forty-nine percent (49%) in the aggregate of direct or indirect interests in Borrower or Principal is owned by any Person that owned less than a forty-nine percent (49%) direct or indirect interest in Borrower or Principal as of the Closing Date, Lender shall, as a condition to such Transfer receive a nonconsolidation opinion acceptable to it and the Rating Agencies (Lender agreeing that a nonconsolidation opinion in substantially the same form delivered on the Company’s books and recordsClosing Date shall satisfactory to Lender). In addition, (y) issue a new certificate or instrument representing prior to any release of the Company Shares Guarantor, a substitute guarantor reasonably acceptable to Lender (Lender agreeing that a Qualified Transferee or permit any book entries for any such Transfer with respect to any Company Shares a Person that are in uncertificated form or (zsatisfies the Financial Criteria shall be an acceptable substitute guarantor) record such vote, in each case, unless and until Shareholder shall have complied with assumed the terms of this AgreementGuaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender (it being agreed that a replacement guaranty in substantially the same form executed by Guarantor on the Closing Date shall be satisfactory to Lender).
Appears in 1 contract
Samples: Loan Agreement (Sabre Corp)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20, (B) Permitted Transfers and (C) upon satisfaction of the Transfer Criteria, Permitted Conditional Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Except as otherwise permitted under the definition of Permitted Transfers and Permitted Conditional Transfers and notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, the REIT must continue to Control Borrower and Guarantor and own, directly or indirectly, at least a seventy five percent (75%) legal and beneficial interest in Borrower and Guarantor.
(e) No Transfer of the Property and assumption of the Loan shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. Otherwise, Lender’s consent to a one (1) time Transfer of the Property and assumption of the Loan shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell (including short sales)voluntary or involuntary, transfer, tender, assign, exchange, pledge, encumber made an assignment for the benefit of creditors or otherwise dispose taken advantage of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Sharesinsolvency act, or any interest thereinact for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to any PersonLender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(iiviii) enter into any voting arrangementTransferee, whether by proxy, voting agreement Transferee’s Principals and Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.23 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) If required by Lender, Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Shares, ratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(iiixi) grant any proxies or powers of attorney with respect Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender;
(xii) Borrower shall deliver, (iv) agree at its sole cost and expense, an endorsement to divest itself the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any voting rights additional exceptions or liens other than those contained in the Subject Shares or Title Policy issued on the date hereof and the Permitted Encumbrances;
(vxiii) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby The Property shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale managed by Shareholder’s trustee in any bankruptcy, or a sale Qualified Manager pursuant to a purchaser Replacement Management Agreement; and
(xiv) Borrower or Transferee, at any creditor’s or court sale), the transferee (which term, as used hereinits sole cost and expense, shall include any deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and all transferees substance to Lender. Immediately upon a Transfer to such Transferee and subsequent transferees the satisfaction of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsabove requirements, liabilities the named Borrower and rights Guarantor herein shall be released from all liability under this Agreement, which shall continue in full force the Note, the Mortgage and effect for the Termother Loan Documents accruing after such Transfer. The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote but Lender agrees to provide written evidence thereof reasonably requested by Borrower.
(f) Lender shall not be required to demonstrate any actual impairment of its security or provide any other Person with increased risk of default hereunder in order to declare the authority Debt immediately due and payable upon Borrower’s Transfer without Lender’s consent. This provision shall apply to vote every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(g) Anything contained in this Section 5.2.10 to the contrary notwithstanding, Borrower or Borrower’s predecessor-in-title shall have the right to execute, deliver and record the Permanent Water Line Easement in the form attached hereto as Exhibit C. If requested by Borrower, Lender shall, at Borrower’s sole cost and expense, subordinate the lien of the Company Shares other than Mortgage to such Permanent Water Line Easement provided that (i) such Permanent Water Line Easement is in strict compliance with this Agreement, the Company form of Exhibit C attached hereto and (ii) Lender shall not (x) permit be required to take any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer action with respect to any Company Shares such Permanent Water Line Easement during the period that are in uncertificated form or is thirty (z30) record such vote, in each case, unless days prior to and until Shareholder shall have complied with the terms of this Agreementthirty (30) days after a Securitization.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners, as applicable, in owning the Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Collateral, the Property or any part thereof or any legal or beneficial interest therein, or (ii) permit a Sale or Pledge of an interest in any Restricted Party ((i) and (ii) collectively, a “Transfer”), other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Collateral or enter into any contractpart thereof for a price to be paid in installments; (ii) an agreement by Mortgage Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, option, derivative, hedging, swap, forward assignment or other agreementtransfer of, understanding or the grant of a security interest in, Mortgage Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the limited liability company interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such limited liability company interest, or the Sale or Pledge of non-managing limited liability company interests or the creation or issuance of new non-managing limited liability company interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other arrangement than in accordance with Section 5.1.22 hereof.
(including any profit sharing arrangementd) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer and shall not require Lender’s consent: (i) the sale or transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; (ii) the sale or transfer, directly or indirectly, in one or a series of transactions, of not more than forty-nine percent (49%) of the limited partnership interests or non-managing limited liability company interests (as the case may be) in a Restricted Party; provided, however, that with respect to each such sale or transfer (A) no such sales or transfers shall result in the change of voting control in the Restricted Party, (B) as a condition to each such sale or transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed sale or transfer, (C) no such sale or transfer of any direct ownership interests in Borrower or Mortgage Borrower shall be permitted, (D) Borrower shall pay or cause to be paid any and all costs imposed or incurred as a result of any such sale or transfer, including, without limitation, any transfer taxes, and (E) if after giving effect to any such sale or transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies; and (iii) the execution by Mortgage Borrower of a license agreement and related documents for the operation of a health club on the Property with a wholly owned taxable reit subsidiary of the Operating Partnership provided that Mortgage Borrower delivers to Lender an executed copy of such license agreement and related documents and all fees payable to Mortgage Borrower arising from such license are deposited into the Lockbox Account. In addition to the requirements of this Section 5.2.10(d), except following transfers of the Property permitted pursuant to Section 5.2.10(f), at all times during the term of the Loan, the Operating Partnership must continue to control Borrower, Mortgage Borrower and Affiliated Manager and own, directly or indirectly, at least a fifty-one percent (51%) interest in Borrower, Mortgage Borrower and Affiliated Manager. The sale, transfer or issuance of stock in the REIT shall not be deemed a transfer hereunder provided the stock of the REIT is listed and traded on the New York Stock Exchange or such other nationally recognized stock exchange.
(e) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer ofwithout Lender’s written consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(f) Notwithstanding anything to the contrary contained herein, and without limiting any Transfers or rights under Section 5.2.10(g) hereof, Lender agrees that it shall not unreasonably withhold its consent to a Transfer (or to an unlimited number of Transfers) of the Company SharesProperty by Mortgage Borrower (or the then owner of the Property), provided that the following terms and conditions are satisfied: (i) Borrower (or any interest therein, the then owner of the Property) shall have given at least thirty (30) days prior written notice to any PersonLender of the proposed Transfer and the proposed Transfer shall not be effective earlier than the date that is twelve (12) months after the first Payment Date, (ii) enter into any voting arrangementno Default, whether by proxy, voting agreement Mortgage Loan Default or otherwise, with respect to any Event of the Subject Shares, Default shall have occurred or be continuing; (iii) grant any proxies or powers an express assumption of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company Note, and the other Loan Documents by the principals of the proposed transferee of the Property, and a pledge by the principals of the proposed transferee of all of their equity interest in the transferee of the Property as security for the Loan in form and substance satisfactory to Lender, in each case subject to the provisions of Section 9.4 hereof; (iv) payment of all of fees and expenses incurred in connection with such Transfer, including, without limitation, the cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses or required legal opinions; (v) payment of a non-refundable $5,000 application fee and an assumption fee equal to one-quarter of one percent (0.25%) of the Outstanding Principal Balance with respect to the initial transfer and one-half of one percent (0.50%) of the Outstanding Principal Balance with respect to each transfer thereafter; (vi) the delivery of an Additional Insolvency Opinion reflecting the proposed Transfer reasonably satisfactory in form and substance to Lender; (vii) the proposed transferee’s compliance with the representations and covenants set forth in Section 4.1.30 and Section 5.2.9 hereof; (viii) the delivery of evidence satisfactory to Lender that the single purpose nature and bankruptcy remoteness of the proposed transferee, and its shareholders, partners or members, as the case may be, following such Transfer is in accordance with the then current standards of Lender and the Rating Agencies; (ix) prior to any release of Guarantor, a substitute guarantor acceptable to Lender in its sole discretion shall not have assumed the Guaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender; (x) permit any Lender shall have received confirmation in writing from the Rating Agencies to the effect that such Transfer on the Company’s books and recordswill not result in a re-qualification, (y) issue a new certificate reduction or instrument representing any withdrawal of the Company Shares then current rating assigned to the Securities or permit any book entries for class thereof in any applicable Securitization; (xi) the satisfaction of all of the conditions set forth in Section 5.2.10(f) of the Mortgage Loan Agreement; and (xii) the satisfaction of such Transfer 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 any Company Shares the Loan, the Mortgage Loan and the Property.
(g) A Transfer that are occurs by inheritance, devise or bequest or by operation of law upon the death or disability of a natural person who holds an indirect interest in uncertificated form or (z) record such voteMortgage Borrower and a Transfer by a natural person of indirect interests in Mortgage Borrower for estate planning purposes shall not require the consent of Lender and no transfer fee shall be payable in connection therewith, provided that, in each case, unless such Transfer is to a non-minor member of the immediate family of the holder of such interest, or a trust established for the benefit of a member of the immediate family of the holder of such interest, and until Shareholder provided further that, in each case, each of the following transfer conditions are satisfied:
(i) no Event of Default shall have complied occurred and remain uncured;
(ii) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such transfer not less than ten (10) days prior to the date of such Transfer, or in the event that any such Transfer or series of Transfers shall result in any Person that does not own more than a 20% direct or indirect interest in Mortgage Borrower as of the date hereof owning more than a 20% direct or indirect interest in Mortgage Borrower, Borrower shall give Lender thirty (30) days prior written notice of such Transfer and Lender shall have an opportunity to perform its customary credit and background searches with respect to such transferee, except in the case of the death or disability of an interest holder, in which event Borrower shall give Lender notice of such Transfer within ten (10) Business Days after such Transfer;
(iii) no such Transfer of interest shall result in a change of control of Mortgage Borrower or Borrower (or its managing member or general partner) or the day to day operations of the Property, or, if such Transfer would result in a change of control of Mortgage Borrower or Borrower (or its managing member or general partner) or the day to day operations of the Property as a result of the death or disability of an interest holder that is a natural person, Lender shall have approved in good faith the Person that will control Mortgage Borrower or Borrower and/or the day to day operations of the Property;
(iv) the legal and financial structure of Mortgage Borrower and Borrower and their shareholders, partners or members, and the single purpose nature and bankruptcy remoteness of Mortgage Borrower and Borrower and its shareholders, partners or members, after such Transfer shall satisfy Lender’s then current applicable underwriting criteria and requirements;
(v) if, after taking into account any prior Transfers pursuant to this Section 5.2.10(g), whether to the proposed transferee or otherwise, such Transfer (or series of Transfers) shall result in (A) the proposed transferee, together with all members of his/her immediate family or any affiliates thereof, owning in the aggregate (directly, indirectly or beneficially) more than 49% of the interests in Mortgage Borrower (or any entity directly or indirectly holding an interest in Mortgage Borrower), or (B) a Transfer in the aggregate of more than 49% of the interests in Mortgage Borrower or Borrower as of the date hereof, Borrower shall deliver to Lender, (y) an Additional Insolvency Opinion reasonable satisfactory to Lender, and (z) at the request of Lender, written confirmations from the Rating Agencies that such Transfer or series of Transfers will not result in a qualification, downgrade or withdrawal of the then applicable ratings of the Securities; and
(vi) Borrower shall pay all fees and expenses incurred by Lender in connection with such Transfer, including, without limitation, the cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses and required legal opinions.
(h) Notwithstanding anything to the contrary contained herein, Operating Partnership, or its Affiliates, shall have the right to, and may, pledge, without Lender’s consent, its indirect equity interests in Borrower, other than any direct interests in Borrower or Mortgage Borrower, to secure (i) a loan facility or loan facilities to Operating Partnership or its Affiliates other than Borrower or Mortgage Borrower, from a group of lenders for which Credit Suisse First Boston acting through its New York branch will act as initial administrative and collateral agent and (ii) related hedging arrangements in connection therewith without Lender’s consent; provided, however, that in either case, Operating Partnership or its Affiliates (other than Borrower or Mortgage Borrower) pledges, directly or indirectly, its equity interests in substantially all of the property owning subsidiaries in which Operating Partnership holds a direct or indirect interest, and provided further that any enforcement action taken pursuant to such pledge shall constitute a Transfer that is prohibited pursuant to the terms of this AgreementSection 5.2.10 and the holder of such pledge shall be required to comply with all of the applicable provisions of this Section 5.2.10.
Appears in 1 contract
Transfers. Shareholder shall not(a) Unless such action is permitted by the provisions of this Section 5.2.10, Borrower agrees that it will not (i) directly or indirectly offer, sell (including short sales), transfer, tendersell, assign, exchangemortgage, grant, pledge, encumber assign, grant options with respect to, transfer or otherwise dispose of its legal or beneficial interests in any Individual Property, the Senior Mezzanine Collateral or the Collateral or any part thereof or permit Senior Mezzanine Borrower, Principal, Mortgage Borrower or Maryland Owner to do any of the foregoing other than pursuant to space leases permitted under, and entered into in accordance with, Section 5.1.20 hereof (including by gift, merger or operation Section 5.1.20 of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) the Mortgage Loan Agreement with respect to a Transfer of, any Mortgage Borrower and Maryland Owner or Section 5.1.20 of the Company Shares, or any interest therein, to any PersonSenior Mezzanine Loan Agreement), (ii) enter into permit any voting arrangementowner, directly or indirectly, of an ownership interest in the Collateral, the Senior Mezzanine Collateral or any Individual Property, to transfer or dispose of such interest, whether by proxytransfer of stock or other interest in a Restricted Party, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, incur Indebtedness (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect Indebtedness permitted pursuant to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement), or permit Mortgage Borrower or Maryland Borrower to incur Indebtedness (other than Indebtedness permitted pursuant to the terms of the Mortgage Loan Agreement) or permit Senior Mezzanine Borrower to incur Indebtedness (other than Indebtedness permitted pursuant to the terms of the Senior Mezzanine Loan Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Collateral, the Senior Mezzanine Collateral, any Individual Property or any part thereof, (v) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise transfer or dispose of any direct or indirect ownership interest in any Restricted Party or permit any owner of an interest in a Restricted Party to do the same, or (vi) file, or permit Senior Mezzanine Borrower, Mortgage Borrower or Maryland Owner to file, a declaration of condominium with respect to any Individual Property (any of the foregoing transactions, a “Transfer”). For avoidance of doubt, except as expressly set forth in Section 5.2.10(d) below, no assumption of all or any portion of the Loan shall be permitted without Lender’s prior written consent, such consent to be granted or withheld in Lender’s sole and absolute discretion.
(b) For purposes hereof, a “Transfer” shall not include (i) any public issuance, sale or transfer of non-controlling interests in Inland Western Retail Real Estate Trust, Inc., (ii) transfer by devise or descent or by operation of law upon the death of a member or partner of Borrower, Senior Mezzanine Borrower, Mortgage Borrower, Principal or Maryland Owner, or (iii) the transfer of direct or indirect equity interests in Inland Equity Investors, LLC or in Inland Equity, LLC by the current holders thereof or their respective successors, transferees and assigns.
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein, other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20, or (collectively, ii) permit a Sale or Pledge of any direct or indirect interest in any Borrower or other Restricted Party (any of the acts set forth in clause (i) or (ii) being referred to herein collectively as a “Transfer”) except as permitted under, and subject to the satisfaction of the conditions set forth in, Section 5.2.10(d) below.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer and may occur without the consent of Lender or the payment of any transfer or other fee: Transfers of direct and/or indirect interests in Borrower and in its constituent partners, stockholders, members and beneficiaries (including transfers between and among such Persons), provided that (i) FelCor OP must continue to control, directly or enter into any contractindirectly, optionon an unencumbered basis (subject to Section 5.2.10(f) below), derivativeeach Borrower and each Principal and own, hedgingdirectly or indirectly, swap, forward or other agreement, understanding or other arrangement at least fifty-one percent (including any profit sharing arrangement51%) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Personequity and economic interests in each Borrower, (ii) enter into any voting arrangementFelCor REIT must at all times be the sole general partner of and control FelCor OP and continue to own, whether by proxydirectly or indirectly, voting agreement or otherwise, with respect to any at least eighty percent (80%) of the Subject Sharesequity and economic interests in FelCor OP, (iii) grant any proxies each Borrower shall remain, directly or powers of attorney with respect indirectly, on an unencumbered basis (subject to any or all of the Subject SharesSection 5.2.10(f) below), under 100% common ownership and control by FelCor OP, (iv) agree to divest itself Lender receives prior written notice of any voting rights such transfer and copies of the documents transferring such interest, provided that the foregoing requirement set forth in this subsection (iv) shall not be applicable in the Subject Shares case of transfers of limited partnership interests in FelCor OP or of publicly traded stock in FelCor REIT, and (v) commit or agree to take if after such transfer any Person and its Affiliates collectively owns more than forty-nine (49%) in the aggregate of the foregoing actions. Shareholder agrees that any Transfer direct and/or indirect interests of Subject Shares not permitted hereby Borrower and as of the Assumption Date such Person and its Affiliates collectively owned forty-nine percent (49%) or less in the aggregate of the direct and/or indirect interests of Borrower, Lender shall have received an Additional Insolvency Opinion reasonably satisfactory to Lender and the Rating Agencies.
(e) Notwithstanding the other provisions of this Section 5.2.10, Transfers of one hundred percent (100%) of the direct and/or indirect interests in Borrower or transfers of the Property, shall be null permitted with Lender’s prior written consent, which consent shall not be unreasonably withheld after consideration of all relevant factors and void ab initio provided that Borrower satisfies the following conditions:
(i) no Event of Default has occurred and that any such prohibited Transfer may is continuing;
(ii) the proposed transferee (“Transferee”) shall be a reputable entity or person of good character, creditworthy, and should shall have sponsorship with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Lender;
(iii) the Transferee or its sponsor and its property manager shall have sufficient experience in the ownership and management of properties similar to the Property, and Lender shall be enjoined. If any involuntary Transfer of any provided with reasonable evidence thereof (and Lender reserves the right to approve the Transferee without approving the substitution of the Company Shares occurs property manager);
(includingiv) if a Securitization has occurred, but confirmation in writing from the Rating Agencies to the effect that such transfer will not limited toresult in a re-qualification, a sale by Shareholder’s trustee reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any bankruptcyapplicable Securitization;
(v) Lender shall have received evidence reasonably satisfactory to it (which shall include a legal non-consolidation opinion reasonably acceptable to Lender) that the single purpose nature and bankruptcy remoteness of Transferee following such transfers are in accordance with the standards of the Rating Agencies;
(vi) the Transferee shall have executed and delivered to Lender an assumption agreement in form and substance reasonably acceptable to Lender, or a sale evidencing such Transferee’s agreement to a purchaser at any creditor’s or court sale)abide and be bound by the terms of the Note, the transferee Mortgage and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Lender;
(which term, as used herein, vii) Lender shall include any and all transferees and subsequent transferees have received from Borrower or Transferee on or prior to the date of the initial transfereesale or transfer (A) shall take and hold such Company Shares subject an assumption fee equal to all one percent (1.0%) of the restrictionsLoan amount, liabilities (B) a rating confirmation fee for each of the Rating Agencies delivering a confirmation pursuant to clause (iv) above, which confirmation fees shall be equal to the then customary fees charged by each applicable Rating Agency for such a confirmation and rights under (C) the payment of all out-of-pocket third-party costs and expenses incurred by Lender, Servicer and the Rating Agencies in connection with such assumption (including reasonable attorneys’ fees and costs); and
(viii) Borrower shall have provided to Lender at least thirty (30) days prior written notice of such proposed transfer.
(f) Notwithstanding anything to contrary contained in this Agreement, provided that no Event of Default has occurred and is continuing, certain owners of Borrower shall be permitted to obtain mezzanine financing (the “Subordinate Mezzanine Loan”), which Subordinate Mezzanine Loan shall continue be secured by the membership or partnership interests in full force Hotel Owner and/or Hotel Operator (as applicable) or the owners of Borrower, subject to the following conditions and requirements:
(i) Lender’s review and approval in its reasonable discretion of the terms and conditions of the Subordinate Mezzanine Loan and the documents evidencing the Subordinate Mezzanine Loan, but only to the extent such review of the documents is to confirm such terms and conditions;
(ii) the Subordinate Mezzanine Loan shall only be payable out of any excess cash flow from the Property;
(iii) the Subordinate Mezzanine Loan together with the Loan (and any New Mezzanine Loan) shall have a combined loan-to-value ratio of no greater than eighty percent (80%);
(iv) the lender under the Subordinate Mezzanine Loan shall enter into, and be subject to, an intercreditor agreement in the form and substance reasonably satisfactory to Lender in its reasonable discretion (the “Subordinate Mezzanine Intercreditor Agreement”);
(v) the Subordinate Mezzanine Loan shall be nonrecourse as to principal and interest required to be paid under the Subordinate Mezzanine Loan and shall not be secured by a lien against the Property;
(vi) Borrower shall reimburse Lender for all reasonable out-of-pocket expenses incurred by Lender in reviewing the Subordinate Mezzanine Loan documents and negotiating and documenting the Subordinate Mezzanine Intercreditor Agreement;
(vii) Borrower shall have obtained and delivered to Lender at Borrower’s sole cost and expense a confirmation in writing from each of the Rating Agencies that such Subordinate Mezzanine Loan will not result in a requalification, reduction, downgrade or withdrawal of the ratings in effect immediately before such Subordinate Mezzanine Loan was incurred for the Term. The Company agrees that if Shareholder attempts to Transfer, vote Securities or provide any other Person class thereof issued in connection with a Securitization which are then outstanding; and
(viii) the authority to vote any final capital structure of the Company Shares other than Subordinate Mezzanine Loan is subject in strict compliance with this Agreementall respects to the Rating Agencies’ approval and to Lender’s reasonable approval, including, without limitation, any changes to the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any organizational structure of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementBorrower.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower, Master Tenant and its and Master Tenant’s stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit Master Tenant or any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20, (B) Hotel Transactions, and (C) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) directly an installment sales agreement wherein Borrower or indirectly offerMaster Tenant agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space Tenant thereunder or a sale, sell assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (including short sales)iii) if a Restricted Party is a corporation, transferany merger, tenderconsolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, any merger or operation consolidation or the change, removal, resignation or addition of law) (collectively, “Transfer”)a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or enter into the Sale or Pledge of limited partnership interests or any contract, option, derivative, hedging, swap, forward profits or other agreement, understanding proceeds relating to such limited partnership interest or other arrangement the creation or issuance of new limited partnership interests; (including any profit sharing arrangementv) with respect to if a Transfer ofRestricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non member manager (or if no managing member, any member) or the Sale or Pledge of the Company Sharesmembership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non managing membership interests or the creation or issuance of new non managing membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest thereinin a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding anything to the contrary contained in the Loan Documents.
(i) Lender’s consent shall not be required in connection with one (1) or a series of Transfers of up to forty-nine percent (49%) in the aggregate of the direct or indirect ownership interests in any Restricted Party provided that (a) no Event of Default shall have occurred and remain uncured or would occur as a result of such Transfer, (b) such Transfer shall not (i) cause the transferee (together with its Affiliates) to acquire Control of any PersonRestricted Party unless such transferee is Guarantor, (ii) enter into result in any voting arrangementRestricted Party that is as of the Closing Date controlled by Guarantor no longer being controlled by Guarantor, whether or (iii) cause the transferee (together with its Affiliates) to increase its direct or indirect interest in any Restricted Party to an amount which exceeds forty-nine percent (49%) in the aggregate, unless such transferee owned more than forty-nine percent (49%) of the direct or indirect ownership interests in such Restricted Party on the Closing Date or as a result of a Transfer previously made in accordance with the terms and provisions of this Agreement, (c) the Property shall continue to be managed by proxyManager or a Qualified Manager, voting agreement (d) after giving effect to such Transfer, Guarantor shall continue to own, directly or otherwiseindirectly, at least fifty-one percent (51%) of all legal, beneficial and economic interests in each of Borrower and Master Tenant, (e) if, immediately following such Transfer, the transferee owns ten percent (10%) or more of the direct or indirect ownership interests in Borrower or Master Tenant then, to the extent such transferee did not own ten percent (10%) or more of the direct or indirect ownership interests in Borrower or Master Tenant on the Closing Date, Borrower shall deliver, or cause to be delivered, at Borrower’s sole cost and expense, such searches (including credit, negative news, OFAC, litigation, judgment, lien and bankruptcy searches) as Lender may reasonably require with respect to such transferee and its Controlling Persons, the results of which must be reasonably acceptable to Lender (unless such transferee and Controlling Persons were previously the subject of searches by Lender which were reasonably acceptable to Lender, in which case Borrower’s obligation to deliver or cause the delivery of such searches under this Section 5.2.10(d) shall be satisfied to the extent reasonably acceptable updates to such searches are delivered to Lender), and such transferee, its Borrowers and controlling Persons shall otherwise satisfy Lender’s then current applicable underwriting criteria and requirements, (f) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer (or final drafts thereof with signed copies to follow upon the effect date of such transfer) and the organizational documents of the transferee and its constituent parties reasonably required by Lender not less than ten (10) days prior to the date of such Transfer), and (g) the legal and financial structure of Borrower, Master Tenant and their respective stockholders, members or partners, as applicable, and the single purpose nature and bankruptcy remoteness of Borrower, Master Tenant and their respective stockholders, members or partners, as applicable, after such Transfer, shall satisfy Lender’s then current applicable underwriting criteria and requirements. Notwithstanding anything in this Section 5.2.10(d) to the contrary, and without limiting any of the foregoing requirements of this Section 5.2.10(d), if after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect ownership interests in any Restricted Party are owned by any Person (together with its Affiliates) that owned less than forty-nine percent (49%) of the direct or indirect ownership interests in such Restricted Party as of the Closing Date or as a result of a Transfer previously made in accordance with the terms and provisions of this Agreement, then Borrower shall, prior to the effective date of any such Transfer, deliver (or cause to be delivered) to Lender a non-consolidation opinion letter acceptable to Lender and delivered by counsel reasonably satisfactory to Lender; and
(ii) The sale, conveyance, transfer, disposition, alienation, hypothecation, pledge or encumbering of all or any portion of the direct or indirect ownership interests in Mxxxx REIT II (each a “Permitted REIT Transfer”) shall be permitted at any and all times without (1) Lender’s consent, (2) notice to Lender, or (3) the payment of any fee, premium, penalty or other payment to Lender other than payment of Lender’s actual out-of-pocket expenses, if any, provided, however, that upon completion of such Permitted REIT Transfer (a) except with the Lender’s prior written consent, Mxxxx REIT II is a Reporting Company, (b) there is no change of Control of Borrower, Master Tenant, Principal or Mxxxx REIT II, (c) no Person together with such Person’s Affiliates, other than the Key Principal and his Affiliates, owns more than forty-nine percent (49%) of the direct or indirect ownership interests in Mxxxx REIT II, (d) Mxxxx REIT II continues to own, directly or indirectly, at least seventy-five percent (75%) of the ownership interests in MNOP II and MNOP II continues to own, directly or indirectly, one hundred percent (100%) of the ownership interests in Borrower and Master Tenant, and (e) if the Franchise Agreement will be terminated as a result of any such Permitted REIT Transfer, the Property shall be operated in accordance with a Replacement Franchise Agreement.
(e) For the avoidance of doubt, and notwithstanding anything in this Section 5.2.10 to the contrary, (i) MNOP II must, at all times, own 100% of the direct equity interests in each of Borrower and MN Lxxxxxxxx-Xxxxxx MT, Inc., a Delaware corporation, (ii) MN Lxxxxxxxx-Xxxxxx MT, Inc., a Delaware corporation, must, at all times, own 100% of the direct equity interests in Master Tenant, and (iii) Mxxxx REIT II continues to own, directly or indirectly, at least seventy-five percent (75%) of the ownership interests in MNOP II.
(f) Borrower, without the consent of Lender, may grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no transfer, conveyance or encumbrance shall materially impair the utility and operation of the Property or materially adversely affect the value of the Property or the Net Operating Income of the Property. If Borrower shall receive any consideration in connection with any of said described transfers or conveyances, provided no Event of Default then exists, Borrower shall have the right to use any such proceeds in connection with any alterations performed in connection therewith, or required thereby. In connection with any transfer, conveyance or encumbrance permitted above, Lender shall, unless it reasonably determines that the foregoing conditions have not been satisfied, execute and deliver any instrument reasonably necessary or appropriate to evidence its consent to said action or to subordinate the Lien of the Security Instrument to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by the Lender of: (A) a copy of the instrument of transfer; and (B) an Officer’s Certificate stating with respect to any transfer described above, that such transfer does not materially impair the utility and operation of the Subject SharesProperty or materially reduce the value of the Property or the Net Operating Income of the Property. Borrower shall pay all of Lender’s reasonable expenses incurred in connection with the foregoing including, (iii) grant reasonable attorney’s fees and expenses Lender shall not be required to demonstrate any proxies actual impairment of its security or powers any increased risk of attorney with respect default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to previous Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein, or (ii) permit a Sale or Pledge of an interest in any Restricted Party (clause (i) and (ii) above, collectively, a “Transfer”), other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof.
(c) A Transfer shall include, but not be limited to: (i) an installment sales agreement wherein Borrower agrees to sell the Property, or enter into any contractpart thereof, optionfor a price to be paid in installments; (ii) an agreement by Borrower leasing all or substantially all of the Property for other than actual occupancy by a space tenant thereunder, derivativeor a sale, hedging, swap, forward assignment or other agreementtransfer of, understanding or other arrangement the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the limited liability company interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such limited liability company interest, or the Sale or Pledge of non-managing limited liability company interests or the creation or issuance of new non-managing limited liability company interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including any profit sharing arrangementan Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer and shall not require Lender’s consent: (i) the sale or transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; and (ii) the sale or transfer, directly or indirectly, in one or a series of transactions, of not more than forty-nine percent (49%) of the limited partnership interests or non-managing limited liability company interests (as the case may be) in a Restricted Party; provided, however, that with respect to each such sale or transfer (A) no such sales or transfers shall result in the change of voting control in the Restricted Party, (B) as a condition to each such sale or transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed sale or transfer, (C) no such sale or transfer of any direct ownership interests in Borrower or Mezzanine Borrower shall be permitted, (D) Borrower shall pay or cause to be paid any and all costs imposed or incurred as a result of any such sale or transfer, including any transfer taxes, and (E) if after giving effect to any such sale or transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, except following a transfer of the Property permitted pursuant to Section 5.2.10(f) hereof, the Operating Partnership must continue to (1) Control Borrower, Guarantor, and any Affiliated Manager, and (2) own, directly or indirectly, at least a fifty-one percent (51%) interest in Borrower, Guarantor and any Affiliated Manager. The sale, transfer or issuance of stock in the REIT shall not be deemed a Transfer ofhereunder, any provided, that the stock of the Company SharesREIT is listed and traded on the New York Stock Exchange or such other nationally recognized stock exchange.
(e) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer without Lender’s written consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or any interest therein, whether or not Lender has consented to any Personprevious Transfer.
(f) Notwithstanding anything to the contrary contained herein, and without limiting any Transfers or rights under Section 5.2.10(g) hereof, Lender agrees that it shall not unreasonably withhold its consent to a Transfer (or to an unlimited number of Transfers) of the Property by Borrower (or the then owner of the Property), provided that the following terms and conditions are satisfied: (i) Borrower (or the then owner of the Property) shall have given at least thirty (30) days prior written notice to Lender of the proposed Transfer and the proposed Transfer shall not be effective earlier than the date that is twelve (12) months after the first Payment Date; (ii) enter into any voting arrangementno Default, whether by proxyEvent of Default, voting agreement Mezzanine Default or otherwise, with respect to any Mezzanine Event of the Subject Shares, Default shall have occurred or be continuing; (iii) grant any proxies or powers of attorney with respect to any or all the proposed transferee of the Subject Shares, (iv) agree to divest itself Property shall have executed and delivered an express assumption of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company Note, the Mortgage and the other Loan Documents, subject to the provisions of Section 9.4 hereof; (iv) payment of all of fees and expenses incurred in connection with such Transfer, including the cost of any third party reports, reasonable legal fees and expenses, Rating Agency fees and expenses or required legal opinions; (v) payment of an assumption fee equal to one half of one percent (0.50%) of the Outstanding Principal Balance with respect to the initial transfer and one percent (1.00%) of the Outstanding Principal Balance with respect to each transfer thereafter; (vi) the delivery of an Additional Insolvency Opinion reflecting the proposed Transfer reasonably satisfactory in form and substance to Lender; (vii) the proposed transferee’s compliance with the representations and covenants set forth in Section 4.1.30 and Section 5.2.9 hereof; (viii) the delivery of evidence satisfactory to Lender that the single purpose nature and bankruptcy remoteness of the proposed transferee, and its shareholders, partners or members, as the case may be, following such Transfer is in accordance with the then current standards of Lender and the Rating Agencies; (ix) prior to any release of Guarantor, a substitute guarantor acceptable to Lender in its discretion shall not have assumed the Guaranty and the Environmental Indemnity executed by Guarantor, or executed a replacement guaranty, environmental indemnity, reasonably satisfactory to Lender; (x) permit any Lender shall have received confirmation in writing from the Rating Agencies to the effect that such Transfer on the Company’s books and recordswill not result in a re-qualification, (y) issue a new certificate reduction or instrument representing any withdrawal of the Company Shares then current ratings assigned to the Securities or permit any book entries for class thereof in any applicable Securitization; (xi) the satisfaction of all of the conditions set forth in Section 5.2.10(f) of the Mezzanine Loan Agreement; and (xii) the satisfaction of such Transfer other conditions as Lender shall determine in its reasonable discretion to be in the interest of Lender, including the creditworthiness, reputation and qualifications of the transferee with respect to any Company Shares the Loan and the Property.
(g) A Transfer that are occurs by inheritance, devise or bequest or by operation of law upon the death or disability of a natural Person who holds a direct or indirect interest in uncertificated form Borrower, and a Transfer by a natural Person of direct or (z) record such voteindirect interests in Borrower for estate planning purposes, shall not require the consent of Lender and no transfer fee shall be payable in connection therewith, provided, however, that, in each case, unless such Transfer is to a non-minor member of the immediate family of the holder of such interest, or a trust established for the benefit of a member of the immediate family of the holder of such interest, and until Shareholder provided further that, in each such case, each of the following transfer conditions are satisfied:
(i) no Event of Default or Mezzanine Event of Default shall have complied occurred and remain uncured;
(ii) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such transfer not less than ten (10) days prior to the date of such Transfer, or if any such Transfer or series of Transfers shall result in any Person that does not own more than a twenty percent (20%) direct or indirect interest in the Borrower as of the date hereof owning more than a twenty percent (20%) direct or indirect interest in Borrower, Borrower shall give Lender thirty (30) days prior written notice of such Transfer and Lender shall have an opportunity to perform its customary credit and background searches with respect to such transferee, except in the case of the death or disability of an interest holder, in which event Borrower shall give Lender notice of such Transfer within ten (10) Business Days after such Transfer;
(iii) no such Transfer of interest shall result in a change of Control of Borrower (or its managing member/general partner) or the day-to-day operations of the Property, or, if such Transfer would result in a change of Control of Borrower (or its managing member/general partner) or the day-to-day operations of the Property, as a result of the death or disability of an interest holder that is a natural Person, Lender shall have approved in good faith the Person that will Control Borrower and/or the day-to-day operations of the Property;
(iv) the legal and financial structure of Borrower and its shareholders, partners or members, and the single purpose nature and bankruptcy remoteness of Borrower and its shareholders, partners or members, after such Transfer shall satisfy Lender’s then current applicable underwriting criteria and requirements;
(v) if, after taking into account any prior Transfers pursuant to this Section 5.2.10(g), whether to the proposed transferee or otherwise, such Transfer (or series of Transfers) shall result in (A) the proposed transferee, together with all members of his/her immediate family or any Affiliates thereof, owning in the aggregate (directly, indirectly or beneficially) more than forty-nine percent (49%) of the interests in Borrower (or any entity directly or indirectly holding an interest in Borrower), or (B) a Transfer in the aggregate of more than forty–nine percent (49%) of the interests in Borrower as of the date hereof, Borrower shall deliver to Lender, (x) a non-consolidation opinion reasonable satisfactory to Lender, and (y) at the request of Lender, written confirmations from the Rating Agencies that such Transfer or series of Transfers will not result in a qualification, downgrade or withdrawal of the then applicable ratings of the Securities; and
(vi) Borrower shall pay all fees and expenses incurred by Lender in connection with such Transfer, including the cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses and required legal opinions.
(h) Notwithstanding anything to the contrary contained herein, a Qualified Pledgor shall have the right to, and may, pledge, without Lender’s consent, its or their direct or indirect equity interests in the Mezzanine Borrower, to secure (i) a loan facility or loan facilities to one or more Qualified Pledgors from a group of lenders for which a Qualified Institutional Lender acts as agent or collateral agent or will act as initial administrative and collateral agent, and (ii) related hedging arrangements in connection with the loan facility or loan facilities described in clause (i); provided, however, that in either case, such Qualified Pledgor(s) pledges, directly or indirectly, its or their equity interests in substantially all of the property owning subsidiaries in which Operating Partnership holds a direct or indirect interest, and provided further that any enforcement action taken pursuant to such pledge shall constitute a Transfer that is subject to the terms of this AgreementSection 5.2.10 and the holder of such pledge shall be required to comply with all of the applicable provisions of this Section 5.2.10.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) directly or indirectly offer, an installment sales agreement wherein Borrower agrees to sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Property or any interest therein, part thereof for a price to any Person, be paid in installments; (ii) enter into any voting arrangementan agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect to any such corporation’s stock or all the creation or issuance of the Subject Shares, new stock; (iv) agree to divest itself if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any voting rights in general partner or any profits or proceeds relating to such partnership interest, or the Subject Shares Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.if
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
Transfers. Shareholder (a) Each Borrower acknowledges that Lender has examined and relied on the experience of such Borrower and its general partners, members, principals and of IDOT Guarantor and its (if such Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on such Borrower’s and IDOT Guarantor’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Each Borrower and IDOT Guarantor acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should such Borrower or IDOT Guarantor, as applicable, default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Properties.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, each Borrower shall not, and shall not permit IDOT Guarantor or any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledgegrant a security interest in, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Individual Property or in any Restricted Party (collectively, a “Transfer”), other than (x) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof, and (y) the disposition of Equipment and other Personal Property pursuant to the replacement thereof or enter into otherwise in the ordinary course of the operation of the Individual Property.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein any contractBorrower or IDOT Guarantor, optionas applicable, derivativeagrees to sell an Individual Property, hedgingor any part thereof, swapfor a price to be paid in installments; (ii) an agreement by any Borrower or IDOT Guarantor, forward as applicable, leasing all or substantially all of an Individual Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other agreementtransfer of, understanding or the grant of a security interest in, such Borrower’s or IDOT Guarantor’s as applicable, right, title and interest in and to any Leases or any Rents; (iii) except as expressly provided in Subsection (d) below, if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) except as expressly provided in Subsection (d) below, if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) except as expressly provided in Subsection (d) below, if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) except as expressly provided in Subsection (d) below, if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of any Manager (including, without limitation, an Affiliated Manager) other than in accordance with Sections 5.1.22 and 5.2.1 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer: (i) the sale or transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock or other arrangement beneficial interest in a Restricted Party; provided, however, no such sales or transfers shall result in the change of voting control in the Restricted Party, and as a condition to each such sale or transfer, Lender shall receive not less than thirty (including 30) days’ prior notice of such proposed sale or transfer, and (ii) the sale or transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such sales or transfers shall result in the change of voting control in the Restricted Party, and as a condition to each such sale or transfer, Lender shall receive not less than thirty (30) days’ prior notice of such proposed sale or transfer. In no event or circumstances shall Lender’s consent or approval be required with respect to (A) the trading or issuance of shares or other securities of the REIT on a nationally recognized stock exchange, or (B) the transfer, sale or issuance of operating partnership units or other securities of the Guarantor (“OP Units”) to (x) a Qualified Transferee or (y) any profit sharing arrangementPerson in connection with a past or future acquisition or sale of any properties or interests therein provided that such Qualified Transferee or the REIT controls the Guarantor and owns not less than a thirty percent (30%) interest in the Guarantor and provided, further that no other Person and its affiliates own in the aggregate more than a thirty percent (30%) interest in the Guarantor or the REIT (it being understood that a Sale or Pledge by the REIT or any other Person owning OP Units in Guarantor or a Sale or Pledge by the Guarantor of its interest in any Person other than direct interest in Borrower, IDOT Guarantor, Operating Tenant or Principal held by the Guarantor or HHC TRS Holding Corporation shall be permitted in connection with a company financing by the REIT or the Guarantor with a Qualified Transferee) or (C) the issuance, transfer or sale of shares of the REIT or the operating partnership units of the Guarantor in connection with the merger, reorganization or consolidation of the REIT or Guarantor, provided, the surviving entity (i) is controlled by the REIT or a Qualified Transferee or (ii) is a publicly listed company on a nationally recognized stock exchange and (x) such entity has a net worth greater than the net worth of the REIT immediately before such merger, reorganization or consolidation and (y) is not managed or controlled by a Person that is a Prohibited Person, a convicted felon, a bankrupt in the past ten (10) years or a litigant in any foreclosure or other enforcement action brought by Lender.
(e) Lender’s prior written consent shall not be required (and no transfer or assumption fees shall be charged by Lender) with respect to a Transfer of, any transfer of the Company SharesProperty to an Affiliate of the REIT or Affiliated Manager, or provided that, in each such case (i) Lender shall receive sixty (60) days’ prior written notice of any interest therein, to any Personsuch transfer, (ii) enter into any voting arrangementthe transferee shall be a single purpose, whether by proxy, voting agreement or otherwise, with respect bankruptcy-remote entity and deliver a non-consolidation opinion reasonably acceptable to any of the Subject SharesLender, (iii) grant the REIT shall own, directly or indirectly, fifty-one percent (51%) or more of the equitable and beneficial interests of any proxies such transferee (iv) provided a Securitization shall have occurred, Lender shall receive prior written confirmation from the applicable Rating Agencies that there shall be no downgrade, withdrawal or powers qualification of attorney the then current ratings of the Securities or any class thereof and (v) Borrower shall pay all reasonable out-of-pocket costs and expenses of Lender in connection with such proposed transfer.
(f) Lender may condition its consent to any proposed transfer that does not meet the conditions of sub-sections (d) or (e) on 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 Individual Property. Lender shall not be required to demonstrate any actual impairment of its security or all any increased risk of default hereunder in order to declare the Obligations immediately due and payable upon a Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(g) Lender shall not unreasonably withhold consent to an assumption of the Subject SharesLoan; provided that the following conditions are met:
(i) no Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee (“Transferee”) shall be a Qualified Transferee;
(iii) if the Manager shall not be the manager of the Property following such transfer, then the Manager must be a Qualifying Manager;
(iv) agree if required by Lender, delivery of confirmation in writing from each Rating Agency to divest itself the effect that such transfer and assumption of any voting rights the Loan will not result, solely as the result of such transfer or series of transfers, in a downgrade, withdrawal or qualification of the Subject Shares or ratings in effect immediately prior to such proposed transfer for the Securities which then are outstanding;
(v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder Transferee shall have complied with executed and delivered to Lender an assumption agreement in form and substance reasonably acceptable to Lender, evidencing such Transferee’s agreement to abide and be bound by the terms of this AgreementAgreement (including without limitation Sections 4.1.30 and 5.2.9 hereof), the Note, the Mortgages and the other Loan Documents, as applicable, together with such legal opinions and title insurance endorsements as may be reasonably requested by Lender;
(vi) Lender shall have received a non-consolidation opinion covering the Transferee and such other persons reasonably required by Lender and the Rating Agencies, such opinion to be reasonably satisfactory to Lender and the Rating Agencies;
(vii) the transfer and assumption shall not occur prior to the first anniversary of the first Payment Date;
(viii) payment of a non-refundable assumption fee in the amount of one percent (1%) of the Outstanding Principal Balance;
(ix) the delivery of evidence satisfactory to Lender that the single purpose nature and bankruptcy remoteness of each Borrower or IDOT Guarantor, as applicable, its shareholders, partners or members, as the case may be, following such Transfers are in accordance with the then current standards of Lender and the Rating Agencies;
(x) prior to any release of the Guarantor, a substitute guarantor reasonably acceptable to Lender shall have assumed the Guaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender; and
(xi) payment of all of fees and expenses reasonably incurred by or on behalf of Lender in connection with such Transfer including, without limitation, the cost of any required third party reports, reasonable legal fees and expenses, Lender’s out-of-pocket expenses, Rating Agency fees and expenses or required legal opinions.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether 61 or not for consideration or of record) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Property or any part thereof or any legal or beneficial interest therein, to any Person, (ii) enter into or subject the Property to a PACE Loan, or (iii) permit a Sale or Pledge of an interest in any voting arrangementRestricted Party, whether in either case, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20, and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by proxyBorrower leasing all or a substantial part of any Property for other than actual occupancy by a space Tenant thereunder or a sale, voting assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof. For greater specificity, a “Transfer” shall not include any transaction done pursuant to Section 5.2.10(b)(A), or (B).
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, but subject to Estate Planning Transfers, AMERCO must Control Borrower and own, directly or indirectly, at least a fifty-one percent (51%) legal and beneficial interest in Borrower.
(e) No Transfer of the Property and assumption of the Loan shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. Otherwise, 62 Lender’s consent to a one (1) time Transfer of the Property and assumption of the Loan shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay Lender: (A) a non-refundable application fee of $5,000 in connection with such proposed transfer, and (B) a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan upon the closing of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly by Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or otherwiseregulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(viii) Transferee, Transferee’s Principals and Related Entities shall not have defaulted under its or their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.23 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational 63 documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) If required by Lender, Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Shares, ratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(iiixi) grant any proxies or powers of attorney with respect Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender;
(xii) Borrower shall deliver, (iv) agree at its sole cost and expense, an endorsement to divest itself the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any voting rights additional exceptions or liens other than those contained in the Subject Shares or Title Insurance Policy issued on the date hereof and the Permitted Encumbrances;
(vxiii) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby The Property shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, operated by Manager or managed by a sale by Shareholder’s trustee in any bankruptcy, or a sale Qualified Manager pursuant to a purchaser Replacement Management Agreement; and
(xiv) Borrower or Transferee, at any creditor’s or court sale), the transferee (which term, as used hereinits sole cost and expense, shall include any deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and all transferees substance to Lender. Immediately upon a Transfer to such Transferee and subsequent transferees the satisfaction of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsabove requirements, liabilities the named Borrower and rights Guarantor herein shall be released from all liability under this Agreement, which shall continue in full force the Note, the Mortgage and effect for the Termother Loan Documents accruing after such Transfer. The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with written evidence thereof reasonably requested by Borrower.
(f) Notwithstanding the authority provisions of this Section 5.2.10, subject to vote any the satisfaction of the Company Shares Easement Criteria, Borrower shall have the right to grant easements on the Property for utilities and other than matters in strict compliance with this Agreementthe ordinary course of business, and Lender shall subordinate the Company shall not (x) permit lien of the applicable Mortgage to any such Transfer on easements. “Easement Criteria” shall mean the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.following:
Appears in 1 contract
Samples: Loan Agreement (Amerco /Nv/)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners and members, as applicable, and principals of Borrower in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property and the Collateral as a means of maintaining the value of the Property as security for repayment of the Indebtedness and the performance of the obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Indebtedness or the performance of the obligations, Lender can recover the Indebtedness by a sale of the Property and/or the Collateral.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 6.3, Borrower shall not, and shall not permit any Borrower Party or any other Person having a direct or indirect ownership or beneficial interest in Borrower, whether voluntarily or involuntarily, to do any of the following: (collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) grant options with respect to a Transfer of(including granting of any purchase options, rights of first refusal, rights of first offer or similar rights in respect of any portion of the Company Shares, Collateral or the subjecting of any interest therein, portion of the Collateral to any Personrestrictions on transfer), (ii) enter into an agreement for the leasing of all or a substantial part of the Propety for any voting arrangementpurpose other than the actual occupancy by a space Tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect Borrower’s right, title and interest in and to any Leases or any Revenue (provided, that, any Leases to Tenants such as WeWork Companies Inc., Convene and Regus, for the use of the Subject Sharesdemised premises to rent space to third parties, shall be deemed to comply with this provision), or (iii) grant any proxies permit a Sale or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself Pledge of any voting rights in the Subject Shares direct or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee indirect interest in any bankruptcy, Borrower Party or any Person having a sale to direct or indirect ownership or beneficial interest in a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such voteBorrower Party, in each case, other than Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Collateral, the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial portion of the Property or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Gross Revenue; (iii) if a Borrower Party or its direct or indirect owners is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Borrower Party or its direct or indirect owners is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Borrower Party or its direct or indirect owners is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a member or non-member manager or the Sale or Pledge of the membership interest of a member or any profits or proceeds relating to such membership interest; (vi) if a Borrower Party or its direct or indirect owners is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in such Borrower Party or its direct or indirect owners, any change in the situs of such trust, or the creation or issuance of new legal or beneficial interests; (vii) any direct and/or indirect change of Control of Borrower such that Guarantor no longer directly and/or indirectly Controls Borrower; (viii) entering into any contract to do any of the foregoing (unless closing of such contract is conditioned on obtaining Lender’s consent) or (ix) Borrower certificating its interest under Article 8 or otherwise opting in to Article 8.
(d) Notwithstanding anything to the contrary contained in this Section 6.3, the following Transfers (herein, the “Permitted Transfers”) shall be permitted hereunder, if and until Shareholder only if each of the requirements set forth herein are satisfied:
(i) a Lease entered into in accordance with this Agreement;
(ii) a Permitted Encumbrance;
(iii) a Transfer of publicly traded shares on a nationally or internationally recognized stock exchange in any indirect equity owner of Borrower; or
(iv) any other Transfer (but not a mortgage, pledge, hypothecation, encumbrance or grant of a security interest) of a direct or indirect interest in Borrower, provided that:
(A) on the date of the Transfer, no Event of Default shall exist;
(B) Borrower shall continue to be a Single-Purpose Entity;
(C) Borrower shall pay all costs and expenses of Lender in connection with any Transfer, whether or not such Transfer is deemed to be a Permitted Transfer, including, without limitation, all fees and expenses of Lender’s counsel, whether internal or outside;
(D) in connection with any Transfer in which a Person that did not previously own ten percent (10%) or more of the aggregate direct and/or indirect ownership interests (at any tier of ownership) in Borrower shall acquire such a ten percent (10%) direct and/or indirect ownership interest (at any tier of ownership) in Borrower, then (I) Borrower shall, at least ten (10) Business Days before such Permitted Transfer, notify Lender of the proposed transfer and provide copies of all instruments effectuating such transfer, and any organizational documents that Lender shall require, and such other information as Lender shall reasonably request regarding the proposed transferee so as to conduct such background checks, investigations, Patriot Act, the U.S. Bank Secrecy Act, OFAC and other record searches as Lender shall reasonably (and any regulatory requirements and/or internal compliance, “know your customer” and/or committee requirements of Lender, to the extent such internal requirements are applied on a non-discriminatory basis, shall be deemed reasonable) require (at Borrower’s sole cost and expense), and if Lender, within ten (10) Business Days of receiving such notice from Borrower, sends a notice to Borrower that it has in good faith determined that such Transfer will result in a violation of its legal, regulatory or internal organizational requirements, such Transfer shall not constitute a Permitted Transfer and (II) such Transfer shall be conditioned upon Borrower’s ability to, after giving effect to such Transfer, remake the representations in Section 4.39 and continue to comply with the covenants set forth in Section 5.22;
(E) after giving effect to such Transfer, (A) a Brookfield Party shall continue to Control Borrower and own, in the aggregate, at least ten percent (10%) of all legal, beneficial and equity interests (direct or indirect) in Borrower, (B) a Brookfield Party shall continue to Control Guarantor and own at least twenty percent (20%) of all legal, beneficial and equity interests (direct or indirect) in Guarantor, (C) Guarantor shall continue to Control Borrower and own at least fifty-one percent (51%) of all legal, beneficial and equity interest (direct or indirect) in Borrower, and (D) at least fifty-one percent (51%) of all equity interests in Borrower are owned (directly or indirectly) by a Brookfield Party and one or more Qualified Equity Holders;
(F) any transferee acquiring twenty percent (20%) or more of the direct or indirect equity interests in Borrower shall be a Qualified Transferee (and Borrower shall provide Lender with at least ten (10) Business Days’ prior written notice thereof);
(G) the Property shall continue to be managed by one or more Approved Property Manager(s), which shall control the day-to-day operations at the Property;
(H) the parking operations at the Property shall continue to be managed by one or more Approved Parking Managers(s), which shall control the day-to-day operations of the parking garages; and
(I) if any such Transfer shall result in any Person (together with its Affiliates) acquiring more than forty-nine percent (49%) of the direct or indirect interest in Borrower and such Person (together with its Affiliates) did not own more than forty-nine percent (49%) of the direct or indirect interest in Borrower on the Closing Date, Borrower shall have complied delivered to Lender a new substantive non-consolidation opinion from a nationally recognized law firm (or a reputable law firm reasonably approved by Lender) in form and substance reasonably satisfactory to Lender (it being acknowledged that if such non- consolidation opinion is substantially in the form and substance of the Nonconsolidation Opinion, such non-consolidation opinion shall be deemed to be satisfactory to Lender).
(v) a pledge of any direct or indirect minority, non-Controlling interest in Guarantor that in each case do not (when aggregated with any other such pledges) result in more than ten percent (10%) of the direct and indirect interests in Guarantor being pledged, provided, that the conditions set forth in Section 6.3(d)(iv) are satisfied;
(vi) Transfers of less than forty-nine percent (49%) (in the aggregate with respect to all Transfers consummated after the Closing Date) of the non-Controlling preferred interests in Brookfield DLTA Fund Office Trust Investor Inc. and Brookfield DLTA Fund Office Trust Inc.; provided, that, if the Transfer results in any Person (together with its Affiliates) owning ten percent (10%) or more of the direct or indirect interests in Borrower and such Person (together with its Affiliates) did not own ten percent (10%) of the direct or indirect interests in Borrower prior to such Transfer, then, Borrower shall provide Lender with at least ten (10) Business Days’ prior written notice thereof and such Person must satisfy Lender’s current customary underwriting standards including, without limitation, background checks performed by Lender and review of such other information requested by Lender in connection with know your customer and anti-money laundering diligence; and
(vii) A pledge of direct or indirect equity interest and right to distributions from Guarantor only, so long as the following conditions are satisfied:
(A) No Event of Default shall exist;
(B) Borrower shall provide Lender with at least ten (10) Business Days’ prior written notice thereof;
(C) Such pledge is made in connection with a corporate-level financing of not less than $50,000,000 being provided by an Institutional Lender to a direct or indirect beneficial owner or equity owner in Guarantor (a “Corporate Loan”);
(D) Such pledge does not constitute more than thirty percent (30%) of the total value of the collateral for such Corporate Loan at the time of origination of such Corporate Loan;
(E) The entities directly pledged for such Corporate Loan own (either directly or through direct or indirect subsidiaries) not less than four (4) real estate assets in addition to the Property;
(F) Borrower shall have no obligations or liabilities with respect to any Corporate Loan; and
(G) The loan documents in respect of such Corporate Loan provide that (1) the lender thereunder shall provide to Lender at least thirty (30) days’ prior written notice before the lender thereunder commences a foreclosure action or other exercise of its remedies, (2) the lender thereunder shall, within fifteen (15) days following the exercise of its remedies, deliver to Lender a replacement non-consolidation opinion, (3) after giving effect to any such foreclosure, the Borrower shall be a Single-Purpose Entity, and (4) immediately following the completion of a foreclosure action or other exercise of such lender’s remedies under such loan documents, Borrower reaffirms the obligations of Borrower under the Loan Documents and agrees to be bound by the terms thereof. For the avoidance of doubt, nothing contained in this Agreement shall prohibit or be deemed to prohibit (i) unsecured corporate credit lines and unsecured corporate credit facilities provided by an institutional lender (each, an “Unsecured Corporate Loan”) to the Guarantor or any direct or indirect beneficial or equity owner in Guarantor (each, an “Upper-Tier Brookfield Entity”), and (ii) unsecured Indebtedness between Upper-Tier Brookfield Entities (“Upper-Tier Brookfield Indebtedness”); provided, that, in each case (x) Borrower has no obligations or liabilities with respect to any Unsecured Corporate Loan or Upper-Tier Brookfield Indebtedness and (y) nothing contained herein shall be deemed to limit the obligations of Guarantor under the Loan Documents (including, without limitation, compliance with the terms of this AgreementGuarantor Net Worth Covenant).
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Subject to the terms of Section 5.2.10(d) below, without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (i) directly individually or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, a “Transfer”), or enter into any contract(i) sell, optionconvey, derivativemortgage, hedginggrant, swapbargain, forward or other agreementencumber, understanding or other arrangement (including any profit sharing arrangement) pledge, assign, grant options with respect to a Transfer of, any of the Company Sharesto, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any direct or indirect legal or beneficial interest therein, to any Person, therein or (ii) enter into permit a Sale or Pledge of an interest in any voting arrangementRestricted Party, whether other than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 or (B) as permitted by proxySection 5.2.10(d) below.
(c) A Transfer shall include, voting but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or otherwiseany part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, with respect assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect to any such corporation’s stock or all the creation or issuance of the Subject Shares, new stock; (iv) agree to divest itself if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any voting rights in general partner or any profits or proceeds relating to such partnership interest, or the Subject Shares Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit if a Restricted Party is a limited liability company, any merger or agree to take consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the foregoing actions. Shareholder agrees that membership interest of a managing member (or if no managing member, any Transfer member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of Subject Shares not permitted hereby shall be null and void ab initio and that non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any merger, consolidation or the Sale or Pledge of the Company Shares occurs legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, but not limited towithout limitation, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transfereean Affiliated Manager) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with (i) one or a series of Transfers of the direct or indirect equity interest in Borrower so long as no Change of Control occurs provided each such Transfer shall be conditioned upon (A) the continued compliance with the relevant provisions of Section 4.1.30 hereof and the definition of “Special Purpose Entity” contained herein, and (B) Borrower’s ability to, after giving effect to such Transfer, remake the representations contained herein relating to ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of such Transfer). If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in Borrower are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in Borrower as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender, or (ii) the transfer of obsolete Personal Property and/or Equipment in the ordinary course of business, so long as same is replaced with Personal Property and/or Equipment, as applicable, of similar type, quality and utility or is no longer needed in connection with the use or operation of the balance of the Property, provided that the foregoing shall in no event restrict Borrower from transferring Rents or other sums pursuant to and in compliance with the Cash Management Agreement including, without limitation, Exhibit A thereto.
(e) No consent to any assumption of the Loan shall occur on or before the first anniversary of the first Payment Date. Thereafter, Lender reserves the right to condition the consent to Transfers required hereunder upon (a) a modification of the terms hereof, the Note, the Security Instrument or the other Loan Documents; (b) an assumption of this Agreement, the Company shall not Note, the Security Instrument and the other Loan Documents, subject to the provisions of Section 9.4 hereof; (xc) permit any payment of all of fees and expenses incurred in connection with such Transfer on including, without limitation, the Company’s books cost of any third party reports, legal fees and recordsexpenses, application fees, and expenses or required legal opinions; (yd) issue a new certificate or instrument representing any the payment of an assumption fee equal to one percent (1%) of the Company Shares outstanding principal balance of the Loan and an application fee of $5,000; (e) the delivery of an Additional Insolvency Opinion reflecting the proposed transfer satisfactory in form and substance to Lender; (f) the proposed transferee’s continued compliance with all of the representations and covenants set forth herein, including, without limitation, in Section 4.1.30, Section 4.1.35 and Section 5.2.9 hereof; (g) the delivery of evidence satisfactory to Lender that the proposed transferee is a Special Purpose Entity in accordance with the then current standards of Lender; (h) prior to any release of the Guarantor, a substitute guarantor reasonably acceptable to Lender shall have assumed the Guaranty executed by Guarantor or permit any book entries for any executed a replacement guaranty reasonably satisfactory to Lender; (i) approval by Lender of the proposed transferee; or (j) such Transfer other conditions as Lender shall determine in its sole and absolute 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.
(f) Lender shall not be required to demonstrate any Company Shares actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with is not permitted by the terms of this AgreementSection 5.2.10 without Lender’s consent. This provision shall apply to every Transfer that is not permitted by the terms of Section 5.2.10, regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, Key Principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership and control of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or any interest of Borrower in the Loan (including any of its rights, duties and obligations under this Agreement and the other Loan Documents) or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20 and (B) Permitted Transfers, or (iii) enter into any plan of division, or divide, establish a protected series, create a new registered series, or convert to another form of incorporated or unincorporated business or other entity or provide in its operating agreement for any of the foregoing without Lender’s prior written consent.
(c) A Transfer shall include (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than twenty percent (20%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the Change of Control in a Restricted Party or cause any Key Principal to no longer be a Key Principal of Borrower, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. Borrower shall pay any and all reasonable out-of-pocket costs and expenses incurred in connection with such Transfers (including Lender’s reasonable attorneys’ fees and any fees and expenses of the Rating Agencies).
(e) Without limiting Lender’s discretion to approve or disapprove any request for a waiver of the prohibition against Transfers, Lender specifically reserves the right to condition its consent to any waiver of a prohibited Transfer upon satisfaction of the following minimum conditions:
(i) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer, including Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes;
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including short salesby entering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not acceptable to Lender;
(viii) Transferee, Transferee’s Principals and Related Entities shall not have defaulted under its or their obligations with respect to any other Indebtedness in a manner which is not acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.31, 4.1.34, 5.1.23 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) Prior to any release of Guarantor, one (1) or more substitute guarantors acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender.
(xi) Borrower shall deliver, at its sole cost and expense, an endorsement to the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property (if applicable), transferwhich endorsement shall insure that, tenderas of the date of the recording of the assumption agreement, assignthe Property shall not be subject to any additional exceptions or liens other than those contained in the Title Insurance Policy issued on the date hereof and the Permitted Encumbrances;
(xii) If applicable, exchangethe Property shall be managed by Qualified Manager pursuant to a Replacement Management Agreement; and
(xiii) The Property meets all of the Lender’s underwriting standards related to its financial condition, pledgecash flow, encumber operating income, physical condition, management and operation.
(f) Notwithstanding any provision in this Section 5.2.10 to the contrary, direct or otherwise dispose indirect limited partnership or membership interests, as applicable, in Borrower may be transferred without Lender’s consent and without application of the fee set forth in Section 5.2.10(e)(i): (including by gifti) among limited partners or members, merger as applicable, of Borrower who are limited partners or operation members, as applicable, of lawBorrower as of the date of this Agreement (each a “Current Owner”), and (ii) to immediate family members (collectivelywhich shall be limited to a spouse, parent, child and grandchild (each, an “Immediate Family Member”)), of any Current Owner or to trusts formed for the benefit of Immediate Family Members of such Current Owner for bona fide estate planning purposes (each, an “Additional Permitted Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any provided each of the Company Sharesfollowing conditions is satisfied: (A) no Default or Event of Default has occurred and is continuing; (B) Lender has received Borrower’s notice of the Additional Permitted Transfer no less than thirty (30) days prior to the commencement of such transfer; (C) no indemnitor or Guarantor shall be released from any guaranty or indemnity agreement by virtue of the Additional Permitted Transfer; (D) Borrower shall be responsible for the costs and expenses of documenting the Additional Permitted Transfer; (E) Borrower shall reimburse Lender for all actual costs and expenses incurred by Lender in connection with the Additional Permitted Transfer, whether or not consummated; (F) once the Additional Permitted Transfer is complete, the persons with Control of Borrower and management of the Property are the same persons who have such Control and management rights immediately prior to the Additional Permitted Transfer; (G) Borrower shall furnish Lender copies of any documentation executed in connection with the Additional Permitted Transfer promptly after execution thereof; and (H) Borrower shall have delivered satisfactory evidence to Lender that, following the Additional Permitted Transfer, Borrower shall continue to comply with the provisions of Section 4.1.31 hereof. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or any interest therein, whether or not Lender has consented to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to previous Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.
Appears in 1 contract
Samples: Commercial Loan Agreement (Red Oak Capital Fund V, LLC)
Transfers. Shareholder (a) Borrower acknowledges that each Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning collateral such as the Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that each Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, each Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Administrative Agent, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectivelythe Property, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Collateral or any part thereof or any legal or beneficial interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject SharesPACE Loan, (iii) grant permit a Sale or Pledge of an interest in any proxies or powers of attorney with respect to any or all of the Subject SharesRestricted Party, (iv) agree to divest itself permit a Sale or Pledge of the CPLV Lease or any voting rights in the Subject Shares interest therein or (v) commit permit a Sale or agree Pledge of any interest in CPLV Tenant or CPLV Tenant’s leasehold interest in the Property other than (A) pursuant to take any Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20, (B) Permitted Transfers (including Permitted Encumbrances), (C) pursuant to customary short-term occupancy agreements with the CPLV Tenant or short-term hotel guests, or (D) a Transfer of a portion of the foregoing actions. Shareholder agrees that any Transfer Property to a Governmental Authority in connection with a Condemnation of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any portion of the Company Shares occurs Property in accordance with Section 6.3 hereof.
(includingc) A Transfer shall include, but not be limited to, a sale by Shareholder’s trustee in (i) an installment sales agreement wherein Borrower agrees to sell the Collateral or any bankruptcy, part thereof or a sale Mortgage Borrower agrees to a purchaser at sell the Property or any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such votepart thereof, in each case, unless for a price to be paid in installments; (ii) an agreement by Mortgage 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, Mortgage Borrower’s right, title and until Shareholder shall have complied interest in and to the CPLV Lease or any CPLV Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the terms provisions of this Agreement.Section 5.2.10(a), Administrative Agent’s consent shall not be required in connection with (i) one or a series of Transfers (except for a Pledge) of (x) not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party or (y) the indirect equity interests in Mezzanine C Borrower by any Person that owns less than forty-nine percent (49%) of the economic and legal beneficial interests in, and does not Control, any of Mortgage Borrower, Mortgage Principal, Principal, any Mezzanine Borrower or Guarantor,
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should an Event of Default occur in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned, or delayed, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or any interest of Borrower in the Loan or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20, (B) Permitted Transfers, and (C) Permitted Encumbrances.
(c) A Transfer shall include (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents (except with respect to the security interest created under the Loan Documents); (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non managing membership interests or the creation or issuance of new non managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding any contrary provisions of this Section 5.2.10 or anything else to the contrary contained in this Agreement or any other Loan Documents, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than fifteen (15) days prior written notice of such proposed Transfer. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than fifteen (15) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, the management team of City Office REIT Operating Partnership, L.P. must continue to Control Borrower and the Property. Borrower shall pay any and all reasonable and documented out-of-pocket costs and expenses incurred in connection with such Transfers (including Lender’s counsel fees and disbursements and any fees and expenses of the Rating Agencies).
(e) No Transfer of the Property and assumption of the Loan shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. Except for such 120 day period, so long as no Event of Default exists and is then continuing, Lender shall not unreasonably withhold, condition, or delay its consent to a Transfer of the Property and assumption of the Loan provided that the following minimum conditions are satisfied:
(i) Borrower shall pay Lender a transfer fee equal to one-half percent (0.50%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable and documented out-of-pocket costs incurred in connection with such Transfer (including Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated experience in owning and operating properties similar in location, size, class and operation to the Property, which experience shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any voluntary bankruptcy proceedings, sell or involuntary bankruptcy proceedings (including short salesexcept to the extent dismissed within ninety (90) days following the commencement thereof), transfer, tender, assign, exchange, pledge, encumber made an assignment for the benefit of creditors or otherwise dispose taken advantage of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Sharesinsolvency act, or any interest thereinact for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents, from and after the date of such assumption, in a manner reasonably satisfactory to any PersonLender in all respects, including by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(iivii) enter into any voting arrangementThere shall be no material adverse litigation or regulatory action pending or threatened against Transferee, whether by proxyTransferee’s Principals or Related Entities which is not acceptable to Lender;
(viii) Transferee, voting agreement Transferee’s Principals and Related Entities shall not have materially defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not acceptable to Lender in its reasonable discretion;
(ix) Transferee and Transferee’s Principals must be able to satisfy, in all material respects, all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.23 and 5.2.9 of this Agreement, no Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) If required by Lender, Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Shares, ratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(iiixi) grant any proxies or powers of attorney with respect Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender.
(xii) Borrower shall deliver, (iv) agree at its sole cost and expense, an endorsement to divest itself the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any voting rights additional exceptions or liens other than those contained in the Subject Shares or Title Policy issued on the date hereof and the Permitted Encumbrances;
(vxiii) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby The Property shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale managed by Shareholder’s trustee in any bankruptcy, or a sale Qualified Manager pursuant to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Replacement Management Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.;
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning the Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the other obligations of Borrower set forth in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower (or any other party that is liable for the Debt, whether as a primary obligor or as a guarantor thereof) default in the repayment of the Debt or performance of the other obligations of Borrower set forth in the Loan Documents, Lender can recover the Debt by a sale of the Collateral. Notwithstanding anything contained in this Agreement to the contrary and notwithstanding that certain Transfers are permitted herein and notwithstanding that certain Sales or Pledges are excluded from being Transfers pursuant to Section 5.2.10(d) below, Canadian Trust shall at all times own 100% of the interests of Canadian Mortgage Borrower.
(b) Without the prior written consent of Lender and except for (a) Permitted Encumbrances (with respect to the Mortgage Loan Collateral), (b) the release of any Individual Property by the applicable Mortgage Loan Party in accordance with Section 2.5, and (c) to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Collateral or the Mortgage Loan Collateral or any part of the foregoing or any legal or beneficial interest in the foregoing or (ii) permit a Sale or Pledge of an interest in any Restricted Party other than (A) pursuant to (I) Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 and (II) occupancy agreements with hotel guests, and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the applicable Collateral or any part thereof or Mortgage Borrower or any other Mortgage Loan Party agrees to sell the applicable Mortgage Loan Collateral or any other Mortgage Loan Collateral or any part of the foregoing, in each case for a price to be paid in installments; (ii) with the exception of the Operating Lease, an agreement by Mortgage Borrower or Property Owner leasing all or a substantial part of any Individual 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, Mortgage Borrower’s, Operating Lessee’s or Property Owner’s or any other Mortgage Loan Party’s (as applicable) right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, the following shall not be deemed to be a Transfer:
(i) A Public Sale; provided, that (A) if after giving effect to any such Public Sale, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party is owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender, and while the Loan is securitized and Securities therein are outstanding, the Approved Rating Agencies, (B) while the Loan is securitized and Securities therein are outstanding, Lender shall have received a Rating Agency Confirmation from each of the Approved Rating Agencies with respect to such Public Sale, (C) (1) no Individual Borrower shall fail to be a Special Purpose Entity by reason of such Public Sale and (2) no Mortgage Loan Party shall fail to be a Special Purpose Entity (as defined in the Mortgage Loan Agreement) by reason of such Public Sale, (D) for so long as the Loan shall remain outstanding, no Sale or Pledge of any direct interest in Mortgage Borrower or any other Mortgage Loan Party pledged as a portion of the Collateral shall be permitted, (E) intentionally omitted, (F) for so long as the Mezzanine B Loan shall remain outstanding, no Sale or Pledge of any direct interests in Borrower pledged as a portion of the Mezzanine B Collateral shall be permitted in connection with a Public Sale, (G) for so long as the Mezzanine C Loan shall remain outstanding, no Sale or Pledge of any direct interests in Mezzanine B Borrower pledged as a portion of the Mezzanine C Collateral shall be permitted in connection with a Public Sale, (H) for so long as the Mortgage Loan or any Mezzanine Loan shall remain outstanding, (i) no pledge or other encumbrance of any direct interests in any Restricted Pledge Party shall be permitted (except as otherwise permitted pursuant to the Mortgage Loan Documents or Mezzanine Loan Documents), provided, that a pledge of the direct ownership interests in the most upper-tier Restricted Pledge Party shall be permitted if such pledge directly or indirectly offersecures indebtedness that is also directly or indirectly secured by substantial assets other than the Collateral; provided, sell further that the provisions of this subclause (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of lawH) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, shall not apply to any Personownership interests issued pursuant to the Management Incentive Compensation Plan in accordance with the provisions of Section 5.2.10(d)(v) below, and (ii) enter into no Restricted Pledge Party shall issue preferred equity that has the characteristics of mezzanine debt (such as a fixed maturity date, regular payments of interest, a fixed rate of return and rights of the equity holder to demand repayment of its investment), and (I) immediately after giving effect to such Public Sale, the Debt Yield shall equal or exceed thirteen percent (13%).
(ii) The Sale or Pledge, in one or a series of transactions, of the direct or indirect equity interests in Borrower or direct or indirect equity interests in any voting arrangementRestricted Party; provided, whether that, (A) after giving effect to such Sale or Pledge, one or more of Guarantor (or Affiliate thereof) or any constituent member of Guarantor (or Affiliate thereof) individually, or collectively, in the aggregate (x) shall own not less than twenty-five percent (25%) of the direct or indirect legal and beneficial interests in Borrower (on an unencumbered and look-through basis) and (y) shall Control Borrower, (B) Lender shall receive notice of any Sale or Pledge described in this Section 5.2.10(d)(ii) not less than thirty (30) days following the consummation thereof (but the failure to deliver any such notice shall not cause the applicable Sale or Pledge to be a Transfer and shall not constitute an Event of Default unless such failure continues for ten (10) Business Days following notice of such failure from Lender), (C) for so long as the Loan is outstanding, no Sale or Pledge of any direct interest in Mortgage Borrower or other Mortgage Loan Party pledged as a portion of the Collateral shall be permitted, (D) intentionally omitted, (E) for so long as the Mezzanine B Loan shall remain outstanding, no such Sale or Pledge of any direct interests in Borrower pledged as a portion of the Mezzanine B Collateral shall be permitted, (F) for so long as the Mezzanine C Loan shall remain outstanding, no Sale or Pledge of any direct interests in Mezzanine B Borrower pledged as a portion of the Mezzanine C Collateral shall be permitted, (G) for so long as the Mortgage Loan or any Mezzanine Loan shall remain outstanding, (i) no pledge or other encumbrance of any direct interests in any Restricted Pledge Party shall be permitted (except as otherwise permitted pursuant to the Mortgage Loan Documents or the Mezzanine Loan Documents, as applicable), and except that a pledge of the direct ownership interests in the most upper-tier Restricted Pledge Party shall be permitted if such pledge directly or indirectly secures indebtedness that is also directly or indirectly secured by proxysubstantial assets other than the Collateral; provided, voting agreement or otherwise, with respect that the provisions of this subclause (G) shall not apply to any ownership interests issued pursuant to the Management Incentive Compensation Plan in accordance with the provisions of Section 5.2.10(d)(v) below, and (ii) no Restricted Pledge Party shall issue preferred equity that has the characteristics of mezzanine debt (such as a fixed maturity date, regular payments of interest, a fixed rate of return and rights of the Subject Sharesequity holder to demand repayment of its investment), and (H)
(1) no Individual Borrower shall fail to be a Special Purpose Entity by reason of such Sale or Pledge and (2) no Mortgage Loan Party shall fail to be a Special Purpose Entity (as defined in the Mortgage Loan Agreement) by reason of such Sale or Pledge. If after giving effect to any such Sale or Pledge, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and, while the Loan is securitized and Securities therein are outstanding, the Approved Rating Agencies.
(iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, Any Transfer (ivhowever structured) agree to divest itself of any voting rights in the Subject Shares direct or (v) commit indirect legal or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee beneficial interests in any bankruptcyPublic Vehicle, including a Public Vehicle that exists on the date hereof or a sale to Public Vehicle which acquires a purchaser at any creditor’s direct or court sale), indirect legal or beneficial interest in Borrower after the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue Closing Date in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied accordance with the terms of this AgreementSection 5.2.10.
(iv) Any Transfer (however structured) of any legal or beneficial interests in any Guarantor or any constituent member of any Guarantor.
(v) Any Transfer of any legal or beneficial interests in ESH Hospitality Holdings LLC (or its successors or assigns) pursuant to the Management Incentive Compensation Plan, and any subsequent Transfer of any such interests once Transferred pursuant to Management Incentive Compensation Plan; provided, that Transfers pursuant the Management Incentive Compensation Plan shall in no event exceed more than ten percent (10%) of the legal or beneficial interests in ESH Hospitality Holdings, LLC (or its successors or assigns) in the aggregate.
(vi) A Sale or Pledge made by Other Mezzanine Borrower to secure the Other Mezzanine Loans in accordance with the Other Mezzanine Loan Documents and any Transfer made in connection with the exercise of remedies by an Other Mezzanine Lender pursuant to the Other Mezzanine Loan Documents.
(vii) Without limiting any other rights of Borrower under this Agreement or the other Loan Documents, any one or more of the Transfers, steps or actions contemplated by Exhibit C hereto, including, without limitation, any actual or deemed statutory conversion, merger, consolidation, reorganization or transfer of equity or assets of ESH Hospitality Holdings LLC, ESH Hospitality, XX XXX Investors, LLC, or Extended Stay or any subsidiary of the foregoing entities, including any Operating Lessee shall be permitted; provided, that the applicable conditions set forth below are satisfied (in each case, a “Restructuring”):
(A) In connection with an Asset Transfer:
I. The applicable Operating Lessee Holdco shall assume all of the obligations of the applicable Existing Operating Lessee under the Mortgage Loan Documents subject to the Lien of the Security Instruments pursuant to an assumption agreement and other documentation in form and substance reasonably satisfactory to Mortgage Lender;
II. Intentionally omitted;
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Transfers. Shareholder shall (a) Except as otherwise permitted by the provisions of this Agreement, Borrower will not, without the prior consent of Lender, (i) directly permit or indirectly offersuffer (by operation of law or otherwise) any sale, sell assignment, conveyance, transfer or other disposition of legal or equitable interest in all or any part of the Property (including short salesother than Permitted Encumbrances), transfer(ii) permit or suffer (by operation of law or otherwise) any sale, tenderassignment, assignconveyance, exchangetransfer or other disposition of any direct or indirect interest in Borrower or Hotel Operator, (iii) permit or suffer (by operation of law or otherwise) any mortgage, lien or other encumbrance of all or any part of the Property (other than Permitted Encumbrances), or (iv) permit or suffer (by operation of law or otherwise) any pledge, encumber hypothecation, creation of a security interest in or otherwise dispose other encumbrance of any direct or indirect interest in Borrower or Hotel Operator (including by gifteach action described in clauses (i), merger or operation (ii), (iii) and (iv) of law) (collectively, this subsection is a “Transfer”). Notwithstanding anything to the contrary contained in this Agreement or in the other Loan Documents, (i) Transfers of interests in Sponsor or enter into in any contract, option, derivative, hedging, swap, forward Person having any direct or other agreement, understanding indirect legal or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, beneficial interest in Sponsor or any interest therein, to any Person, (ii) enter into a Transfer by Accor of its direct or indirect twenty-five percent (25%) interest in Borrower and Hotel Operator shall not be prohibited or restricted in any voting arrangementmanner whatsoever, whether including by proxysale, voting agreement merger, consolidation or otherwiseotherwise and shall not be subject to any notice, delivery, approval or consent requirements, including any requirement for an Additional Insolvency Opinion or any other requirement under Section 5.2.13(c) hereof.
(b) A sale or conveyance by Borrower of all of the Property subject to the lien of the Mortgage (but not a mortgage, lien or other encumbrance) is permitted (and no transfer or assumption fee shall be payable in connection therewith) provided that the following conditions are satisfied:
(i) no Event of Default shall have occurred and be continuing and such sale or conveyance shall not result in an Event of Default;
(ii) the Person to whom the Property is sold or conveyed (the “Transferee”) satisfies the requirements of a Special Purpose Entity and the organizational documents of the Transferee are reasonably acceptable to Lender and, after a Securitization, to the Rating Agencies;
(iii) a Permitted Owner owns not less than 51% of the direct or indirect equity interests in the Transferee and controls, directly or indirectly, the Transferee;
(iv) Lender has received an additional nonconsolidation opinion (the “Additional Insolvency Opinion”) substantively similar to the Insolvency Opinion which may be relied upon by Lender, the Rating Agencies and their respective counsel, successors and assigns, with respect to any the Transferee and its applicable affiliates, which Additional Insolvency Opinion shall be reasonably acceptable to Lender and, after a Securitization, the Rating Agencies;
(v) the Transferee shall execute an assumption, effective as of the Subject Sharesdate of transfer, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any obligations of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall Borrower thereafter arising or to be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights performed under this Agreement, the Mortgage and the other Loan Documents, subject, however, to the provisions of Section 9.4 hereof and upon such assumption, Borrower shall be released from the Loan Documents;
(vi) unless otherwise approved in writing by Lender in its sole discretion, the entity which owns interests in the Transferee similar to the interests in Borrower owned by Sole Member shall continue have an ownership structure that is substantially the same as Borrower and the Sole Member;
(vii) there shall be delivered to Lender opinions of counsel, in full force form, substance and from counsel reasonably satisfactory to Lender and substantially similar to those heretofore delivered as Lender requests on the following matters, subject to exceptions and conditions customarily contained in such opinions: (1) such corporate and securities opinions as shall be reasonably requested by Lender, including without limitation, any and all opinions as shall have been delivered to Lender in connection with the making of the Loan, and (2) such other legal opinions as shall be reasonably requested by Lender;
(viii) if following such sale or conveyance, Manager will not be the property manager of the Property, then the property manager of the Property must be a Qualifying Manager;
(ix) if such sale or conveyance occurs after a Securitization, the Rating Agencies shall have confirmed in writing that such sale or conveyance will not result in a requalification, reduction, downgrade or withdrawal of the ratings in effect immediately prior to such sale or conveyance for the Term. The Company agrees that if Shareholder attempts to Transfer, vote Securities or provide any other Person class thereof issued in connection with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not a Securitization which are then outstanding; and
(x) permit any if such Transfer on the Company’s books and recordssale or conveyance occurs prior to a Securitization, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder Lender shall have complied with the terms of this Agreementconsented to such sale or conveyance.
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Transfers. Shareholder shall not, (i) directly Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating the Home and the Home Leases in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Homes and Home Leases as a means of maintaining the value of the Homes and Home Leases as security for repayment of the Debt and the performance of the other obligations of Borrower hereunder. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Homes and Home Leases so as to ensure that, should Borrower default in the repayment of the Debt, Lender can recover the Debt by a sale of the Homes and the transfer of the Home Leases.
(ii) Without the prior written consent of Lender, except to the extent otherwise set forth in Section 2.05 or indirectly offerwith respect to the leasing of the Homes in the ordinary course of business in accordance with the terms hereof, sell Borrower shall not do any of the following (including short sales)collectively, transfera “Transfer”): (A) sell, tenderconvey, mortgage, grant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement law or otherwise, and whether or not for consideration or of record) the Homes, the Leases or any part thereof or any legal or beneficial interest therein or (B) permit a Sale or Pledge of an interest in Borrower or any Borrower Party, other than pursuant to Home Leases to Residents in accordance with respect to any the provisions of the Subject Shares, Section 5.01(r).
(iii) A Transfer shall include, but not be limited to, (A) an installment sales agreement wherein Borrower agrees to sell the Homes or any part thereof for a price to be paid in installments; (B) an agreement by Borrower leasing all or a substantial part of any Home for other than actual occupancy by a Resident thereunder or a sale, assignment or other transfer of, or the grant any proxies or powers of attorney with respect a security interest in, Borrower’s right, title and interest in and to any Leases or all any Rents allocated to the Homes; (C) if a Borrower Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (D) if a Borrower Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the Subject Sharespartnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of any limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (E) if a Borrower Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the direct or indirect membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of any direct or indirect non-managing membership interests or the creation or issuance of new non-managing membership interests; or (F) if a Borrower Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in Borrower or the creation or issuance of new legal or beneficial interests.
(iv) agree to divest itself For the avoidance of doubt, without the prior written consent of Lender which shall not be unreasonably withheld: (AA) Xxxxxxx Xxx shall not transfer or dilute any voting rights of his ownership interest in GVEST Real Estate Capital LLC, a Delaware limited liability company (“GV REC LLC”); (BB) GV REC LLC shall not transfer or dilute any of its interest in the Subject Shares Borrower’s Member; (CC) Borrower’s Member shall not transfer or dilute its membership interest in Borrower; (vDD) commit Manufactured Housing Properties, Inc. shall not transfer or agree dilute its membership interest in any Community Owner; and (EE) Xxxxxxx Xxx shall not transfer or allow for the dilution of his ownership interest in Manufactured Housing Properties, Inc. so that his ownership interest falls below 65%. Notwithstanding the foregoing, only notice is required to take any be given to Lender within ten (10) days following the consummation of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any following together with copies of the Company Shares occurs documents evidencing the Transfer: (includingAA) for estate planning purposes, but Xxxxxxx Xxx establishes a revocable trust in which he is the sole grantor and primary beneficiary; and (BB) Xxxxxxx Xxx seeks to transfer not limited tomore than twenty-two percent of his common equity interest in Manufactured Housing Properties, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), Inc. provided that he remains the transferee owner of sixty-five (which term, as used herein, shall include any and all transferees and subsequent transferees 65%) of the initial transferee) shall take common equity interest and hold such Company Shares subject to all of the restrictionsvoting and economic interest in Manufactured Housing Properties, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.Inc.
Appears in 1 contract
Samples: Loan Agreement (Manufactured Housing Properties Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein, or (ii) permit a Sale or Pledge of an interest in the Property or any Restricted Party (collectively, a “Transfer”), other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property, or enter into any contractpart thereof, optionfor a price to be paid in installments; (ii) an agreement by Borrower leasing all or substantially all of the Property for other than actual occupancy by a space tenant thereunder, derivativeor a sale, hedging, swap, forward assignment or other agreementtransfer of, understanding or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the limited liability company interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such limited liability company interest, or the Sale or Pledge of non-managing limited liability company interests or the creation or issuance of new non-managing limited liability company interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other arrangement than in accordance with Section 5.1.22 hereof.
(including any profit sharing arrangementd) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer and shall not require Lender’s consent: (i) the sale or transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; (ii) the sale or transfer, directly or indirectly, in one or a series of transactions, of not more than forty-nine percent (49%) of the limited partnership interests or non-managing limited liability company interests (as the case may be) in a Restricted Party; provided, however, that with respect to each such sale or transfer (A) no such sales or transfers shall result in the change of voting control in the Restricted Party, (B) as a condition to each such sale or transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed sale or transfer, (C) no such sale or transfer of any direct ownership interests in Borrower or Mezzanine Borrower shall be permitted, (D) Borrower shall pay or cause to be paid any and all costs imposed or incurred as a result of any such sale or transfer, including, without limitation, any transfer taxes, and (E) if after giving effect to any such sale or transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies; and (iii) the execution by Borrower of a license agreement and related documents for the operation of a health club on the Property with a wholly owned taxable reit subsidiary of the Operating Partnership provided that Borrower delivers to Lender an executed copy of such license agreement and related documents and all fees payable to Borrower arising from such license are deposited into the Lockbox Account. In addition to the requirements of this Section 5.2.10(d), except following transfers of the Property permitted pursuant to Section 5.2.10(f), at all times during the term of the Loan, the Operating Partnership must continue to control Borrower and Affiliated Manager and own, directly or indirectly, at least a fifty-one percent (51%) interest in Borrower and Affiliated Manager. The sale, transfer or issuance of stock in the REIT shall not be deemed a transfer hereunder provided the stock of the REIT is listed and traded on the New York Stock Exchange or such other nationally recognized stock exchange.
(e) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer ofwithout Lender’s written consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(f) Notwithstanding anything to the contrary contained herein and without limiting any Transfers or rights under Section 5.2.10(g) hereof, Lender agrees that it shall not unreasonably withhold its consent to a Transfer (or to an unlimited number of Transfers) of the Company SharesProperty by Borrower (or the then owner of the Property), provided that the following terms and conditions are satisfied: (i) Borrower (or any interest therein, the then owner of the Property) shall have given at least thirty (30) days prior written notice to any Person, Lender of the proposed Transfer and the proposed Transfer shall not be effective earlier than the date that is twelve (12) months after the first Payment Date; (ii) enter into any voting arrangement, whether by proxy, voting agreement no Default or otherwise, with respect to any Event of the Subject Shares, Default shall have occurred or be continuing; (iii) grant any proxies or powers of attorney with respect to any or all the proposed transferee of the Subject Shares, (iv) agree to divest itself Property shall have executed and delivered an express assumption of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company Note, the Mortgage and the other Loan Documents, subject to the provisions of Section 9.4 hereof; (iv) payment of all of fees and expenses incurred in connection with such Transfer, including, without limitation, the cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses or required legal opinions; (v) payment of a non-refundable $5,000 application fee and an assumption fee equal to one-quarter of one percent (0.25%) of the Outstanding Principal Balance with respect to the initial transfer and one-half of one percent (0.50%) of the Outstanding Principal Balance with respect to each transfer thereafter; (vi) the delivery of an Additional Insolvency Opinion reflecting the proposed Transfer reasonably satisfactory in form and substance to Lender; (vii) the proposed transferee’s compliance with the representations and covenants set forth in Section 4.1.30 and Section 5.2.9 hereof; (viii) the delivery of evidence satisfactory to Lender that the single purpose nature and bankruptcy remoteness of the proposed transferee, and its shareholders, partners or members, as the case may be, following such Transfer is in accordance with the then current standards of Lender and the Rating Agencies; (ix) prior to any release of Guarantor, a substitute guarantor acceptable to Lender in its sole discretion shall not have assumed the Guaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender; (x) permit any Lender shall have received confirmation in writing from the Rating Agencies to the effect that such Transfer on the Company’s books and recordswill not result in a re-qualification, (y) issue a new certificate reduction or instrument representing any withdrawal of the Company Shares then current rating assigned to the Securities or permit any book entries for class thereof in any applicable Securitization; (xi) the satisfaction of all of the conditions set forth in Section 5.2.10(f) of the Mezzanine Loan Agreement; and (xii) the satisfaction of such Transfer 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 any Company Shares the Loan and the Property.
(g) A Transfer that are occurs by inheritance, devise or bequest or by operation of law upon the death or disability of a natural person who holds an indirect interest in uncertificated form or (z) record such voteBorrower and a Transfer by a natural person of indirect interests in Borrower for estate planning purposes shall not require the consent of Lender and no transfer fee shall be payable in connection therewith, provided that, in each case, unless such Transfer is to a non-minor member of the immediate family of the holder of such interest, or a trust established for the benefit of a member of the immediate family of the holder of such interest, and until Shareholder provided further that, in each case, each of the following transfer conditions are satisfied:
(i) no Event of Default shall have complied occurred and remain uncured;
(ii) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such transfer not less than ten (10) days prior to the date of such Transfer, or in the event that any such Transfer or series of Transfers shall result in any Person that does not own more than a 20% direct or indirect interest in Borrower as of the date hereof owning more than a 20% direct or indirect interest in Borrower, Borrower shall give Lender thirty (30) days prior written notice of such Transfer and Lender shall have an opportunity to perform its customary credit and background searches with respect to such transferee, except in the case of the death or disability of an interest holder, in which event Borrower shall give Lender notice of such Transfer within ten (10) Business Days after such Transfer;
(iii) no such Transfer of interest shall result in a change of control of Borrower (or its managing member or general partner) or the day to day operations of the Property, or, if such Transfer would result in a change of control of Borrower (or its managing member or general partner) or the day to day operations of the Property as a result of the death or disability of an interest holder that is a natural person, Lender shall have approved in good faith the Person that will control Borrower and/or the day to day operations of the Property;
(iv) the legal and financial structure of Borrower and its shareholders, partners or members, and the single purpose nature and bankruptcy remoteness of Borrower and its shareholders, partners or members, after such Transfer shall satisfy Lender’s then current applicable underwriting criteria and requirements;
(v) if, after taking into account any prior Transfers pursuant to this Section 5.2.10(g), whether to the proposed transferee or otherwise, such Transfer (or series of Transfers) shall result in (A) the proposed transferee, together with all members of his/her immediate family or any affiliates thereof, owning in the aggregate (directly, indirectly or beneficially) more than 49% of the interests in Borrower (or any entity directly or indirectly holding an interest in Borrower), or (B) a Transfer in the aggregate of more than 49% of the interests in Borrower as of the date hereof, Borrower shall deliver to Lender, (y) an Additional Insolvency Opinion reasonable satisfactory to Lender, and (z) at the request of Lender, written confirmations from the Rating Agencies that such Transfer or series of Transfers will not result in a qualification, downgrade or withdrawal of the then applicable ratings of the Securities; and
(vi) Borrower shall pay all fees and expenses incurred by Lender in connection with such Transfer, including, without limitation, the cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses and required legal opinions.
(h) Notwithstanding anything to the contrary contained herein, Operating Partnership, or its Affiliates, shall have the right to, and may, pledge, without Lender’s consent, its indirect equity interests in Borrower, other than any direct interests in Borrower or Mezzanine Borrower, to secure (i) a loan facility or loan facilities to Operating Partnership or its Affiliates, other than Borrower or Mezzanine Borrower, from a group of lenders for which Credit Suisse First Boston acting through its New York branch will act as initial administrative and collateral agent and (ii) related hedging arrangements in connection therewith without Lender’s consent; provided, however, that in either case, Operating Partnership or its Affiliates (other than Borrower or Mezzanine Borrower) pledges, directly or indirectly, its equity interests in substantially all of the property owning subsidiaries in which Operating Partnership holds a direct or indirect interest, and provided further that any enforcement action taken pursuant to such pledge shall constitute a Transfer that is prohibited pursuant to the terms of this AgreementSection 5.2.10 and the holder of such pledge shall be required to comply with all of the applicable provisions of this Section 5.2.10.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property. Notwithstanding the foregoing, for purposes hereof, a “Transfer” shall not include Permitted Transfers.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20 and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non managing membership interests or the creation or issuance of new non managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party, including the redemption of Preferred Member’s (i) initial capital contribution of $1,500,000 to Sole Member and (ii) any accrued and unpaid preferred return on such initial capital contribution, all in accordance with Sole Member’s Operating Agreement (the “Preferred Member Redemption”); provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. In addition, at all times, TNP must continue to Control Borrower and Manager and own, directly or indirectly, at least a 51% legal and beneficial interest in Borrower and Manager.
(e) No Transfer of the Property and assumption of the Loan shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. Otherwise, Lender’s consent to a one (1) time Transfer of the Property and assumption of the Loan shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell (including short sales)voluntary or involuntary, transfer, tender, assign, exchange, pledge, encumber made an assignment for the benefit of creditors or otherwise dispose taken advantage of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Sharesinsolvency act, or any interest thereinact for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to any PersonLender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(iiviii) enter into any voting arrangementTransferee, whether by proxy, voting agreement Transferee’s Principals and Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.23 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) If required by Lender, Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Shares, ratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(iiixi) grant any proxies or powers of attorney with respect Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the Subject Sharesliabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender;
(xii) Borrower shall deliver, (iv) agree at its sole cost and expense, an endorsement to divest itself the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any voting rights additional exceptions or liens other than those contained in the Subject Shares or Title Policy issued on the date hereof and the Permitted Encumbrances; and
(vxiii) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby The Property shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale managed by Shareholder’s trustee in any bankruptcy, or a sale Qualified Manager pursuant to a purchaser at any creditor’s or court sale), Replacement Management Agreement. Immediately upon a Transfer to such Transferee and the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees satisfaction of the initial transferee) shall take and hold such Company Shares subject to all of the restrictionsabove requirements, liabilities the named Borrower and rights Guarantor herein shall be released from all liability under this Agreement, which shall continue in full force the Note, the Mortgage and effect for the Termother Loan Documents accruing after such Transfer. The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company written evidence thereof reasonably requested by Borrower.
(f) Lender shall not (x) permit be required to demonstrate any such actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer on the Companywithout Lender’s books and recordsconsent. This provision shall apply to every Transfer regardless of whether voluntary or not, (y) issue a new certificate or instrument representing any of the Company Shares whether or permit any book entries for any such Transfer with respect not Lender has consented to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementprevious Transfer.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (i) directly individually or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, a “Transfer”), (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or enter into otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any contractpart thereof or any direct or indirect legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, optionother than in each case pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20.
(c) A Transfer shall include, derivativebut not be limited to, hedging(i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, swap, forward assignment or other agreementtransfer of, understanding or other arrangement the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (including any profit sharing arrangementiii) except as set forth in this Section 5.2.10 with respect to Guarantor if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 or Section 5.2.1 hereof. For the avoidance of doubt, for purposes of this Section 5.2.10. a Transfer ofshall not include (x) any issuances, redemptions, conversions, sales, purchases or transfers of the public shares of Guarantor, or (y) any of the Company Sharestransactions, contributions, transfers or steps occurring on or prior to the date of this Agreement as described in the Registration Statement of Guarantor filed with the U.S. Securities and Exchange Commission that were required for Guarantor to become an indirect owner of the Property.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with (A) one or a series of Transfers other than publicly traded shares (excluding the Transfers referenced in subparts (B) and (C) immediately following) of not more than forty-nine percent (49%) of the direct or indirect stock, the limited partnership interests or non-managing membership interests (as the case may be) in Borrower, (B) Transfers of direct or indirect interests in Borrower by and between existing Affiliates or any interest thereinexisting Restricted Party as the Closing Date, to any Person, and (iiC) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Transfers of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all limited partnership interests of the Subject SharesREIT Operating Partnership, (iv) agree including any redemption of such limited partnership interests or the conversion of such limited partnership interests into shares of Guarantor, so long as Guarantor continues to divest itself of any voting rights in Control the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (includingREIT Operating Partnership; provided, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such votehowever, in each case, unless no such Transfer or series of Transfers shall result in the change of Control in a Restricted Party, and until Shareholder each such Transfer shall have complied be conditioned upon the following: (i) receipt by Lender of not less than ten (10) days prior written notice of such proposed Transfer (except, for the avoidance of doubt, with respect to transfers of the public shares of Guarantor or Transfers of the limited partnership interests in the REIT Operating Partnership as described in subpart (C) above), (ii) continued compliance with the relevant provisions of Section 4.1.30 hereof and the definition of “Special Purpose Entity” contained herein, and (iii) Borrower’s ability to, after giving effect to such Transfer, remake the representations contained herein relating to ERISA matters and the Patriot Act, OFAC and matters concerning Embargoed Persons (and, upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate containing such updated representations effective as of the date of the consummation of such Transfer). In addition, at all times, either (x) a Qualified Transferee (or an entity Controlled by a Qualified Transferee) or (y) the REIT Operating Partnership must continue to Control Borrower, Principal and any Affiliated Manager and Guarantor must continue to own, directly or indirectly, at least a twenty five percent (25%) legal and beneficial interest in Borrower. For purposes of this Section 5.2.10, a change of the members of the board of directors of Guarantor or the termination of the advisory agreement by and between City Office Real Estate Management Inc. and Guarantor shall not be considered to be a change of Control of Guarantor, so long as Guarantor remains a public company.
(e) Borrower has no right to assign, convey or transfer the Property subject to the Loan and Lender has no obligation to accept the assumption of the Loan by any Person. Notwithstanding the provisions of this Section 5.2.10(e), after the first anniversary of the Closing Date the Loan may be assumed by acquisition of title to the Property or acquisition of the Controlling interests in connection with the Guarantor, REIT Operating Partnership, Principal or Borrower pursuant to any written agreement entered into with a Qualified Transferee or an entity Controlled by a Qualified Transferee without the prior written consent of Lender (a “Pre-Approved Transfer”), provided, that the following conditions are met: (i) a modification of the terms hereof, the Note, the Mortgage or the other Loan Documents to reflect the new ownership structure; (ii) an assumption of this Agreement, the Note, the Mortgage and the other Loan Documents, subject to the provisions of Section 9.4 hereof; (iii) payment of all of the reasonable actual out-of-pocket fees and expenses incurred by Lender in connection with such loan assumption including, without limitation, the cost of any third party reports and searches, reasonable legal fees and expenses, application fees or required legal opinions; (iv) payment of an assumption fee of one percent (1%) of the outstanding principal balance of the Loan together with an application fee of $5,000; (v) [intentionally omitted]; (vi) the proposed transferee’s continued compliance with all of the representations and covenants set forth herein, including, without limitation, in Section 4.1.30, Section 4.1.35 and Section 5.2.9 hereof; (vii) the delivery of evidence reasonably satisfactory to Lender that the proposed transferee is a Special Purpose Entity if such transferee is to be the Borrower or Principal; (viii) prior to any release of the Guarantor, a substitute guarantor acceptable to Lender in its sole and absolute discretion shall have assumed the Guaranty and the Environmental Indemnity executed by Guarantor or executed a replacement guaranty and an environmental indemnity reasonably satisfactory to Lender; (ix) satisfactory completion of an OFAC/Patriot Act certification; or (x) such other conditions as Lender shall determine in its reasonable discretion to be in the interest of Lender, including, without limitation, regulatory requirements with respect to the borrower and its sponsors, the creditworthiness, reputation and qualifications of the transferee with respect to the Loan and the Property. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a loan assumption without Lender’s consent.
(f) Notwithstanding anything in the Loan Documents to the contrary, Guarantor and the REIT Operating Partnership, may incur the following indebtedness without the Lender’s prior written consent: (i) unsecured indebtedness, (ii) indebtedness secured by interests in, or assets or accounts of, entities other than Borrower or Principal, (iii) indebtedness secured by liens or mortgages on properties other than the Property, and (iv) distributions of excess cash flow from the Property by Borrower, Principal and REIT Operating Partnership subject to the limitations set forth in the Loan Documents (the indebtedness in (i), (ii), (iii) and (iv) being referred to as “Other Permitted Indebtedness”).
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except in connection with the Mezzanine Loan and to the extent otherwise set forth in this Section 5.2.10 and Section 9.6(a), Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20, (B) Permitted Transfers and (C) upon satisfaction of the Transfer Criteria, Permitted Conditional Transfers. Notwithstanding anything contained in this Section 5.2.10(b) or in Section 5.2.10(d) hereof, no Transfer of any direct ownership interest in Borrower or Mezzanine Borrower shall be permitted.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Except as otherwise permitted under the definition of Permitted Transfers and Permitted Conditional Transfers and notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, the REIT must continue to Control Borrower and Guarantor and own, directly or indirectly, at least a seventy five percent (75%) legal and beneficial interest in Borrower and Guarantor.
(e) No Transfer of the Property and assumption of the Loan shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. Otherwise, Lender’s consent to a one (1) time Transfer of the Property and assumption of the Loan shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, sell (including short sales)voluntary or involuntary, transfer, tender, assign, exchange, pledge, encumber made an assignment for the benefit of creditors or otherwise dispose taken advantage of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Sharesinsolvency act, or any interest thereinact for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to any PersonLender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(iiviii) enter into any voting arrangementTransferee, whether by proxy, voting agreement Transferee’s Principals and Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30, 4.1.35, 5.1.23 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) If required by Lender, Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Sharesratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(xi) Prior to any release of Guarantor, one (iii1) grant or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender;
(xii) Borrower shall deliver, at its sole cost and expense, an endorsement to the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any proxies additional exceptions or powers liens other than those contained in the Title Policy issued on the date hereof and the Permitted Encumbrances;
(xiii) The Property shall be managed by Qualified Manager pursuant to a Replacement Management Agreement;
(xiv) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender; and
(xv) If the Mezzanine Loan is still outstanding, the Mezzanine Borrower shall have complied with all of attorney the terms and conditions set forth in the Mezzanine Loan Documents with respect to any or the Transfer and assumption of the Mezzanine Loan. Immediately upon a Transfer to such Transferee and the satisfaction of all of the Subject Sharesabove requirements, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby named Borrower and Guarantor herein shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and released from all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights liability under this Agreement, which shall continue in full force the Note, the Mortgage and effect for the Termother Loan Documents accruing after such Transfer. The Company agrees that if Shareholder attempts to foregoing release shall be effective upon the date of such Transfer, vote or but Lender agrees to provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company written evidence thereof reasonably requested by Borrower.
(f) Lender shall not (x) permit be required to demonstrate any such actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer on the Companywithout Lender’s books and recordsconsent. This provision shall apply to every Transfer regardless of whether voluntary or not, (y) issue a new certificate or instrument representing any of the Company Shares whether or permit any book entries for any such Transfer with respect not Lender has consented to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementprevious Transfer.
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower, Principal and Guarantor in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of a direct or indirect interest in Borrower or any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20, (B) Permitted Transfers, (C) Permitted Encumbrances, and (D) a Permitted Entity Dissolution.
(c) A Transfer shall include, but not be limited to, (i) directly or indirectly offer, an installment sales agreement wherein Borrower agrees to sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Property or any interest therein, part thereof for a price to any Person, be paid in installments; (ii) enter into any voting arrangementan agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space Tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect to any such corporation’s stock or all the creation or issuance of the Subject Shares, new stock; (iv) agree to divest itself if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any voting rights in general partner or any profits or proceeds relating to such partnership interest, or the Subject Shares Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit if a Restricted Party is a limited liability company, any merger or agree to take consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the foregoing actions. Shareholder agrees that membership interest of a managing member (or if no managing member, any Transfer member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of Subject Shares not permitted hereby shall be null and void ab initio and that non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any merger, consolidation or the Sale or Pledge of the Company Shares occurs legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, but not limited towithout limitation, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transfereean Affiliated Manager) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance accordance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementSection 5.1.22 hereof.
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties and the Collateral as a means of maintaining the value of the Properties and the Collateral as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties and the Collateral so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Properties and the Collateral.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectively, “Transfer”), the Collateral or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Properties or any part thereof or any legal or beneficial interest therein, or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20, (B) Permitted Transfers pursuant to Section 5.2.10(d) below, and (c) any Transfers permitted pursuant to Section 5.2.10(d) below.
(c) A Transfer shall include, but not be limited to: (i) an installment sales agreement wherein Borrower agrees to sell the Collateral or the Properties or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of any Individual 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, Borrower’s right, title and interest in and to any PersonLeases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer: (i) the Sale or Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; provided, however, no such Transfers shall result in the change of voting control in the Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer, (ii) enter into any voting arrangementthe Sale or Pledge, whether by proxyin one or a series of transactions, voting agreement or otherwise, with respect to any of not more than forty-nine percent (49%) of the Subject Shareslimited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer and (iii) grant the issuance of newly created stock (and its subsequent sale or transfer) in Hotel Partners or any proxies entity directly or powers indirectly owning a beneficial interest in Hotel Partners (the “Traded Entity”), provided such stock is listed on the New York Stock Exchange or such other nationally recognized stock exchange and, provided, further, that (A) Borrower shall pay to Lender all administrative costs, all legal fees and expenses reasonably incurred by Lender relating to the initial offering of attorney with respect the Traded Entity, (B) at all times, Hotel Fund must continue to control Borrower, Operating Lessee, Mezzanine Borrower, Junior Mezzanine Borrower and Guarantor and own, directly or indirectly, at least a twenty-five percent (25%) interest in Borrower, Operating Lessee, Mezzanine Borrower, Junior Mezzanine Borrower and Guarantor, and (C) if after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or all indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Subject SharesClosing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In connection with the Transfers permitted under this Section 5.2.10(d), Hotel Partners may simultaneously merge into or with (ivor otherwise be combined with) agree the Traded Entity or liquidate so long as Borrower shall deliver to divest itself of any voting rights Lender an Additional Insolvency Opinion and a due authorization and enforceability opinion reflecting such Transfer substantially conforming to the opinions delivered in connection with the Subject Shares or (v) commit or agree to take any funding of the foregoing actions. Shareholder agrees that Loan.
(e) No consent to any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any assumption of the Company Shares occurs Loan shall occur on or before the first (1st) anniversary of the first (1st) Payment Date. Thereafter, Lender’s consent to a one (1) time sale, assignment, or other transfer of the Properties shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer hereunder and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, but not limited towithout limitation, a sale by ShareholderLender’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any counsel fees and disbursements and all transferees recording fees, title insurance premiums and subsequent transferees mortgage and intangible taxes and the fees and expenses of the initial transferee) shall take and hold such Company Shares subject Rating Agencies pursuant to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not clause (x) permit any below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties, which expertise shall be reasonably determined by Lender or employs a Qualified Manager in lieu of having its own direct property management experience. The term “Transferee’s Principals” shall include (A) Transferee’s managing members, general partners or principal majority shareholders and (B) such Transfer on the Company’s books other members, partners or shareholders which directly or indirectly own a fifty-one percent (51%) or greater economic and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are voting interest in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.Transferee;
Appears in 1 contract
Transfers. Shareholder (a) Each Borrower and Operating Lessee acknowledges that Lender has examined and relied on the experience of Borrower, Operating Lessee and its respective stockholders, general partners, members, principals and (if Borrower or Operating Lessee is a trust) beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on the same as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Each Borrower and Operating Lessee acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or should Borrower or Operating Lessee default in the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Properties.
(b) Without the prior written consent of Lender and except to the extent otherwise expressly set forth in this Section 5.2.10, no Individual Borrower or Operating Lessee shall, nor shall notsuch party permit any Restricted Party to, do any of the following (i) directly individually or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, a “Transfer”), (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or enter into otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any contractIndividual Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, optionother than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.21, derivativethe Mezzanine Loan or the Pledge Agreement.
(c) A Transfer shall include, hedgingbut not be limited to, swap(i) an installment sales agreement wherein Borrower or Operating Lessee agrees to sell one or more Individual Properties or any part thereof for a price to be paid in installments; (ii) with the exception of the Operating Lease, forward an agreement by Borrower or Operating Lessee leasing all or a substantial part of any Individual Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer transfer of, or the grant of a security interest in, Borrower’s or Operating Lessee’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the Company Sharespartnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest thereinor the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any Personmerger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.23 hereof; (viii) the pledge by Mezzanine Borrower of its interests in Borrower to secure the Mezzanine Loan in accordance with the Mezzanine Loan Documents; and (ix) if Borrower enters into, or the Property is subjected to, any PACE Loan.
(d) Notwithstanding the provisions of this Section 5.2.10, provided that no Event of Default shall have occurred and be continuing, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the direct or indirect interests (as the case may be) in a Restricted Party; provided, however, that, in the case of each such Transfer, (i) no such Transfer shall result in the change of Control in a Borrower, Operating Lessee, Operating Pledgor or Guarantor, (ii) enter into any voting arrangement, whether the Properties shall be managed by proxy, voting agreement a Qualified Manager pursuant to a the Management Agreement or otherwise, with respect to any of the Subject Sharesa Replacement Management Agreement, (iii) grant any proxies or powers of attorney with respect to any or all if, as a result of the Subject Sharesconsummation of such Transfer, the organizational chart of Borrower attached hereto as Schedule V would no longer be accurate, Borrower shall deliver to Lender an updated organizational chart, together with an Officer’s Certificate, certifying that such updated organizational chart is true, correct and complete, (iv) agree to divest itself in the event of any voting rights Transfer resulting in any Person and its Affiliates that did not own in the Subject Shares or aggregate more than twenty percent (v20%) commit or agree to take any of the foregoing actionsdirect or indirect interests in Borrower and Operating Lessee prior to such transfer, owning in excess of twenty percent (20%) of the ownership interest in Borrower and Operating Lessee, Borrower and Operating Lessee shall provide to Lender, not less than ten (10) Business Days prior to such transfer, the name and identity of each proposed transferee, together with the names of its controlling principals, the social security number or employee identification number of such transferee and controlling principals, and such transferee’s and controlling principal’s home address or principal place of business, and home or business telephone number and (A) the proposed transferee must satisfy Lender’s then current “know your customer” standards and (B) Borrower shall have provided to Lender an Officer’s Certificate identifying the name and address of the proposed transferee and affirming that such proposed transferee is not a Embargoed Person. Shareholder agrees that any Transfer Notwithstanding the provisions of Subject Shares this Section 5.2.10, Lender’s consent shall not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer required in connection with the pledges (or foreclosure of any thereof in accordance with the applicable pledge agreement, or the exercise of any other remedies pursuant to the Company Shares occurs (includingLoan Documents, but not limited toMezzanine Loan Documents or additional mezzanine loan documents entered into pursuant to Section 9.1.3(b) hereof, as applicable, or acceptance of a sale by Shareholder’s trustee deed-in-lieu or an assignment-in-lieu of any thereof) pursuant to the Mezzanine Loan Documents or the Pledge Agreement and no such pledge, foreclosure, exercise of remedies or assignment or transfer in lieu of foreclosure thereof shall in any bankruptcy, or way be deemed a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms violation of this Agreement. In addition, at all times, Guarantor must continue to Control Borrower, Operating Lessee, Operating Pledgor and any Affiliated Manager and own, directly or indirectly, at least a fifty-one percent (51%) legal and beneficial interest in Borrower, Operating Lessee, Operating Pledgor, Operating Lessee and any Affiliated Manager. Notwithstanding anything to the contrary herein, no withdrawal, removal or replacement of any advisor to Guarantor shall be deemed a Transfer or a change in Control or a violation of any provisions of this Agreement or the Loan Documents. Borrower and Guarantor shall provide to Lender reasonable prior written notice of such withdrawal, removal or replacement.
(e) Notwithstanding the foregoing, neither Lender’s consent nor notice to Lender shall be required in connection with the issuance of any share or stock or any sale or transfer by a shareholder in any corporation or REIT of the shares of which are publicly traded on the New York Stock Exchange or any other nationally or internationally recognized securities exchange or quoted on a nationally or internationally recognized automated quotation system, including, without limitation, NASDAQ, nor shall any such sale, transfer or issuance of stock constitute a prohibited Transfer hereunder.
(f) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer without Lender’s consent.
Appears in 1 contract
Samples: Loan Agreement (New York REIT, Inc.)
Transfers. Shareholder (a) Borrower acknowledges that the Administrative Agent and the Lenders have examined and relied on the experience of Borrower and Sponsor in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as direct or indirect security, as the case may be, for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that the Administrative Agent and the Lenders have a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, the Lenders can recover the Debt by a sale of the Properties.
(b) Without the prior written consent of Administrative Agent and the Majority Lenders, and except to the extent otherwise set forth in this Section 4.2.17, Borrower shall not, and shall not permit any other Person having a direct or indirect ownership or beneficial interest in Borrower to sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record, but, in any case, other than to or in favor of any other Loan Party)
(i) any Property or any part thereof or any legal or beneficial interest therein, or (ii) a direct interest in Borrower or Borrower TRS or (iii) any interest, direct or indirect, in any Loan Party or any legal or beneficial interest therein resulting in a Change of Control (a “Transfer”).
(c) A Transfer shall include, but not be limited to, (i) directly an installment sales agreement wherein Borrower agrees to sell one or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, more Properties or any interest therein, part thereof for a price to any Person, be paid in installments; (ii) enter into an agreement by Borrower leasing all or a substantial part of any voting arrangementProperty for a purpose other than actual occupancy by a Tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Transfer of attorney with respect to any such corporation’s stock or all the creation or issuance of the Subject Shares, new stock; (iv) agree to divest itself if a Restricted Party is a limited or general partnership, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Transfer of the partnership interest of any voting rights in general partner or any profits or proceeds relating to such partnership interest, or the Subject Shares Transfer of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit if a Restricted Party is a limited liability company, any merger or agree to take consolidation or the change, removal, resignation or addition of a managing member or non‑member manager (or if no managing member, any member) or the Transfer of the foregoing actions. Shareholder agrees that membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Transfer of Subject Shares not permitted hereby non‑managing membership interests or the creation or issuance of new non‑managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Transfer of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; and (vii) any pledge, hypothecation, assignment, transfer or other encumbrance of any direct or indirect ownership interest in Borrower or any other Loan Party.
(d) Notwithstanding the foregoing, the following Transfers (herein, the “Permitted Transfers”) shall be null and void ab initio and that permitted hereunder without Administrative Agent’s or Majority Lenders’ consent:
(i) an Eligible Lease with an Eligible Tenant entered into in accordance with the Loan Documents;
(ii) a Permitted Lien or any such prohibited Transfer may and should be enjoined. If any involuntary other Lien expressly permitted under the terms of the Loan Documents;
(iii) a Transfer of any a Property in accordance with Section 2.5
(iv) a Transfer of a Property to the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee Borrower TRS in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied accordance with the terms of this Agreement;
(v) a substitution of a Substitute Property for a Property in accordance with Section 2.5.2 or Section 5.3(b), as applicable; and
(vi) the Condemnation of a Property. Borrower shall pay all reasonable documented costs and expenses of the Administrative Agent in connection with any Transfer, whether or not such Transfer is deemed to be a Permitted Transfer, including, without limitation, all reasonable and documented fees and expenses counsel to the Administrative Agent.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its members, stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners, as applicable, owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and Borrower shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein, or (ii) permit a Sale or Pledge of any interest, direct or indirect, in any Restricted Party or (iii) incur Indebtedness (other than the Indebtedness permitted pursuant to the terms of this Agreement, and further provided that this clause (iii) shall not apply to Guarantor) (collectivelyany of the foregoing transactions, a “Transfer”), or enter into any contractother than (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof, option(B) the Loan Documents, derivativeand (C) Permitted Encumbrances.
(c) A Transfer shall include, hedgingbut not be limited to, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementi) with respect an installment sales agreement wherein Borrower agrees to a Transfer of, any of sell the Company Shares, Property or any interest thereinpart thereof, for a price to any Person, be paid in installments; (ii) enter into any voting arrangementan agreement by Borrower leasing all or substantially all of the Property for other than actual occupancy by a space tenant thereunder, whether by proxyor a sale, voting agreement assignment or otherwiseother transfer of, with respect ‑70 ‑ or the grant of a security interest in, Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non‑member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non‑managing membership interests or the creation or issuance of new non‑managing membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer, and so long as all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder applicable conditions contained herein shall have complied with the terms of this Agreement.been fulfilled, such transfer may occur without consent from Lender:
Appears in 1 contract
Samples: Loan Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Transfers. Shareholder (a) Except for a Permitted Transfer as expressly provided in this Section 4.2 hereof, Borrower shall not, (i) and shall not permit or cause any Borrower Affiliate to, directly or indirectly offerindirectly, sell (including short sales), transfer, tendersell, assign, exchangeconvey, mortgage, pledge, encumber hypothecate, encumber, grant a security interest in, exchange or otherwise dispose of (including of, or grant any option or warrant with respect to, directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of law) law or otherwise, and whether or not for consideration or of record (collectively, “each of the foregoing being herein referred to and constituting a "Transfer”"), all or enter into any contractpart of any Property, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, part thereof or any interest therein, or any of the revenues to be earned therefrom, or suffer, consent to or permit the foregoing, without, in each instance, the prior written consent of Lender which may be granted or withheld in Lender's sole discretion. Except for a Permitted Transfer, Borrower shall not permit any owner, directly or indirectly, of a legal or beneficial interest in Borrower or any Borrower Affiliate to Transfer such interest, either of record or beneficially, whether by Transfer of stock, assignment of partnership or membership interest or other Transfer of legal or beneficial interest in Borrower or any Borrower Affiliate, or in any direct or indirect owner thereof, or otherwise permit any new or additional legal or beneficial ownership interests in Borrower or any Borrower Affiliate or any direct or indirect owner to be issued, without, in each instance, the prior written consent of Lender which may be granted or withheld in Lender's sole discretion.
(b) To the extent that Lender elects to consent to any Transfer as to which its consent is required hereunder, Lender shall be entitled to condition its consent on such matters as Lender may elect, in its sole discretion, including, without limitation, execution of instruments of assignment and assumption with respect to the Loan Documents and the Collateral therefor, payment of a transfer fee or other consideration, delivery of certificates and affidavits and indemnities, including an affidavit and indemnification in respect of Code Sections 1445 and 7701, agreements restricting actions which may or may not be taken by any transferee or its owners or restrictions in any such Person's Organizational Documents with respect thereto, additional or replacement security for the Loan, restrictions as to the use of any consideration paid for such Transfer, and opinions, including without limitation, opinions regarding the assumptions of obligations hereunder, substantive consolidation and such other matters as Lender may reasonably require. Within three (3) Business Days after the closing of any Transfer, whether or not such Transfer required Lender's consent, if (i) any of the Properties or any part thereof or any interest therein or (ii) enter into any voting arrangementdirect or indirect ownership interest in Borrower or any Borrower Affiliate is transferred, whether by proxy, voting agreement Borrower shall provide Lender with a copy of the deed or otherwise, other instrument of Transfer to any transferee. Borrower shall promptly after request therefor provide Lender with such other information and documentation with respect to any such Transfer as Lender shall reasonably request, including, without limitation, information as to the ownership of such transferee.
(c) Upon the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself occurrence of any voting rights in Transfer, the Subject Shares or (v) commit or agree provisions of this Section 4.2 shall continue to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any apply to such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs transferee (including, but not limited towithout limitation, any Permitted Transferee) as if it were the transferor hereunder, and any consent by Lender permitting a sale by Shareholder’s trustee in any bankruptcytransaction otherwise prohibited under this Section 4.2, or a sale to a purchaser at any creditor’s right of Borrower or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this AgreementTransfer without such consent, the Company shall not (x) permit constitute a consent to or waiver of any such Transfer right, remedy or power of Lender to withhold its consent on a subsequent occasion to a transaction not otherwise permitted by the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms provisions of this AgreementSection 4.
Appears in 1 contract
Transfers. Shareholder shall notUnless such action is permitted by the provisions of this Section 5.2,13, Borrower agrees that it will not (i) directly or indirectly offer, sell (including short sales), transfer, tendersell, assign, exchangeconvey, pledge, encumber transfer or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of its interests in the Company Shares, Property or any interest therein, to any Personpart thereof, (ii) enter into permit any voting arrangementowner, directly or indirectly, of an ownership interest in the Property, to transfer such interest, whether by proxytransfer of stock or other interest in Borrower or any entity, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, incur Indebtedness (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect Indebtedness permitted pursuant to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Property or any part thereof, (v) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise dispose of any direct or indirect ownership interest in Borrower, or permit any owner of an interest in Borrower to do the same, or (vi) file a declaration of condominium with respect to the Property (any of the foregoing transactions, a "TRANSFER"). For purposes hereof, a "Transfer" shall not include any issuance, sale or transfer of interests in Inland Western Retail Real Estate Trust, Inc.
(a) On and after the date that is twelve (12) months following the Closing Date, Lender shall not withhold its consent to a Transfer of the Property, provided that the following conditions are satisfied;
(1) the transferee of the Property shall be a Special Purpose Entity (the "TRANSFEREE") which at the time of such transfer will be in compliance with the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof and which shall have assumed in writing (subject to the terms of Section 9.4 hereof) and agreed to comply with all the terms, covenants and conditions set forth in this Loan Agreement and the other Loan Documents, expressly including the covenants contained in Section 5.1.1 and the representations contained in 41.30 hereof;
(2) if requested by Lender, Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal or qualification of the then current rating of any securities issued pursuant to such Securitization;
(3) if Manager does not act as manager of the transferred Property then the manager of the Property must be a Qualifying Manager;
(4) no Event of Default shall have occurred and be continuing;
(5) if required or requested by any of the Rating Agencies, Borrower shall have caused counsel to render a substantive non-consolidation opinion which in each case may be relied upon by the holder of the Note, the Ratings Agencies and their respective counsel, agents and representatives with respect to the proposed transaction, including the Transferee, which opinion shall be acceptable to Lender in its reasonable discretion;
(6) Borrower shall have paid (A) an assumption fee equal to one percent (1.0%) of the then outstanding principal balance of the Loan, and (B) the reasonable and customary third-party expenses (including reasonable attorneys' fees and disbursements) actually incurred by Lender in connection with such Transfer; PROVIDED, HOWEVER, no assumption fee shall be required for a Transfer of the Property to a Transferee acceptable to Lender in connection with a joint venture between Inland Western Retail Real Estate Trust, Inc. and an institution acceptable to Lender provided Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., owns at least twenty percent (20%) of the ownership interests in such Transferee and for which Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., is the managing entity and otherwise maintains operational and managerial control of such Transferee, provided that Borrower shall pay all of Lender's reasonable and customary third-party expenses (including reasonable attorneys' fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000. Lender shall approve or disapprove any proposed Transfer governed by this Section 5.2.13(a) within thirty (30) days of Lender's receipt of a written notice from Borrower requesting Lender's approval, provided such notice includes all information necessary to make such decision, and further provided that such written notice from Borrower shall conspicuously state, in large bold type, that "PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, A RESPONSE IS REQUIRED WITHIN THIRTY (30) DAYS OF LENDER'S RECEIPT OF THIS WRITTEN NOTICE". If Lender fails to disapprove any such matter within such period, Borrower shall provide a second written notice requesting approval, which written notice shall conspicuously state, in large bold type, that "PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, THE MATTER DESCRIBED HEREIN SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) DAYS OF LENDER'S RECEIPT OF THIS WRITTEN NOTICE". Thereafter, if Lender does not disapprove such matter within said ten (10) day period such matter shall be deemed approved.
(b) On and after the date that is twelve (12) months following the Closing Date, Lender shall not withhold its consent to, and shall not charge an assumption fee in connection with, (1) a Transfer of up to, in the aggregate, forty-nine percent (49%) of the direct or indirect ownership interests in Borrower, or (2) a Transfer of greater than forty-nine percent (49%) of the direct or indirect ownership interest in Borrower, PROVIDED that (A) such transfer is to a Qualified Entity (as defined below), and (B) Borrower shall pay all of Lender's reasonable and customary third-party expenses (including reasonable attorneys' fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000. For purposes of this Agreement, a "QUALIFIED ENTITY" shall mean an entity (x) with a net worth of $200,000,000 or more, (y) with sufficient experience (determined by Lender in its reasonable discretion) in the ownership and management of properties similar to the Property, and (z) which owns or manages retail properties containing at least 1,000,000 square feet of gross leasable area. If required or requested by any of the Rating Agencies, Borrower shall deliver a substantive non-consolidation opinion with respect to any party not now owning more than 49% of the ownership interests in Borrower acquiring more than 49% of the ownership interests in Borrower.
(c) Notwithstanding anything in this Section 5.2.13 to the contrary, on or after the date that is twelve (12) months after the Closing Date, Borrower shall be permitted to Transfer the entire Property in a single transaction to one newly-formed Special Purpose Entity which shall be wholly-owned subsidiary of Inland Western Retail Real Estate Trust, Inc. or an affiliate thereof ("PERMITTED AFFILIATE TRANSFEREE") which shall be approved by Lender in its reasonable discretion ("PERMITTED AFFILIATE TRANSFER"), provided (1) no Event of Default shall have occurred and be continuing, (2) the creditworthiness of Inland Western Retail Real Estate Trust, Inc., as applicable, has not deteriorated, in the sole discretion of Lender, from the Closing Date to the date of the proposed Transfer, and (3) Borrower shall have paid all reasonable and customary third party expenses (including reasonable attorneys' fees and disbursements) actually incurred by Lender in connection with such Transfer (but not any assumption or processing fee).
(d) Borrower, without the consent of Lender, may grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, parking, water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no transfer, conveyance or encumbrance shall materially impair the utility and operation of the Property or materially adversely affect the value of the Property or the Net Operating Income of the Property. If Borrower shall receive any consideration in connection with any of said described transfers or conveyances, Borrower shall have the right to use any such proceeds in connection with any alterations performed in connection therewith, or required thereby. In connection with any transfer, conveyance or encumbrance permitted above, the Lender shall execute and deliver any instrument reasonably necessary or appropriate to evidence its consent to said action or to subordinate the Lien of the Mortgage to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by the Lender of: (A) a copy of the instrument of transfer; and (B) an Officer's Certificate stating with respect to any transfer described above, that such transfer does not materially impair the utility and operation of the Property or materially reduce the value of the Property or the Net Operating Income of the Property.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Transfers. Shareholder shall not(a) Each Holder, (i) directly severally and not jointly, hereby agrees, while this Agreement is in effect, and except as contemplated hereby or indirectly offerpursuant to the Merger Agreement, sell (including short sales)not to sell, transfer, tender, assign, exchange, pledge, encumber encumber, assign or otherwise dispose of, enforce or permit the execution of (including by giftthe provisions of any redemption, merger share purchase or operation of law) (collectivelysale, “Transfer”), recapitalization or other agreement with the Company or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding option or other arrangement (including any profit sharing arrangement) or understanding with respect to a Transfer or consent to the offer for sale, sale, transfer, pledge, encumbrance, assignment or other disposition of, any of the Company Shares, such Holder’s Warrants or Shares or any interest thereinin such Holder’s Warrants or Shares, in each case including by merger or otherwise by operation of law, except (i) to any PersonParent or Merger Sub, (ii) enter into to a third-party which executes a joinder agreement, in form and substance reasonably satisfactory to Parent, to be bound by each of the terms of this Agreement as if a party hereto, (iii) with the prior written consent of Parent or (iv) in accordance with Section 2.3(b). The Company shall not recognize any voting arrangementpurported transfer of Warrants or Shares in violation of this Agreement.
(b) Notwithstanding the foregoing, whether this Agreement shall not restrict the Holders from selling Shares for value (x) in market transactions or (y) in Restricted Size Private Transactions. For purposes of this Agreement, the term “Restricted Size Private Transactions” shall mean privately negotiated sales of Common Stock by proxyone or more Holders to a purchaser which, voting agreement when aggregated with other such sales by the Holders to such purchaser and each “affiliate” (as such term is defined in Rule 405 of the Securities and Exchange Commission) of such purchaser on or otherwiseafter the date hereof, with respect do not involve more then 2,500,000 shares of Common Stock (as adjusted for any subsequent stock split, stock dividend, recapitalization or similar transaction). For avoidance of doubt, no purchaser pursuant to this Section 2.3(b) shall be subject to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms provisions of this Agreement.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein, other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20, or (collectively, ii) permit a Sale or Pledge of any direct or indirect interest in any Borrower or other Restricted Party (any of the acts set forth in clause (i) or (ii) being referred to herein collectively as a “Transfer”) except as permitted under, and subject to the satisfaction of the conditions set forth in, Section 5.2.10(d) below.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer and may occur without the consent of Lender or the payment of any transfer or other fee: Transfers of direct and/or indirect interests in Borrower and in its constituent partners, stockholders, members and beneficiaries (including transfers between and among such Persons), provided that (i) FelCor OP must continue to control, directly or enter into any contractindirectly, optioneach Borrower and each Principal and own, derivativedirectly or indirectly, hedgingon an unencumbered basis (subject to Section 5.2.10(f) below), swap, forward or other agreement, understanding or other arrangement at least fifty-one percent (including any profit sharing arrangement51%) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Personequity and economic interests in each Borrower, (ii) enter into any voting arrangementFelCor REIT must at all times be the sole general partner of and control FelCor OP and continue to own, whether by proxydirectly or indirectly, voting agreement or otherwise, with respect to any at least eighty percent (80%) of the Subject Sharesequity and economic interests in FelCor OP, (iii) grant any proxies each Borrower shall remain, directly or powers of attorney with respect indirectly, on an unencumbered basis (subject to any or all of the Subject SharesSection 5.2.10(f) below), under 100% common ownership and control by FelCor OP, (iv) agree to divest itself Lender receives prior written notice of any voting rights such transfer and copies of the documents transferring such interest, provided that the foregoing requirement set forth in this subsection (iv) shall not be applicable in the Subject Shares case of transfers of limited partnership interests in FelCor OP or of publicly traded stock in FelCor REIT, and (v) commit or agree to take if after such transfer any Person and its Affiliates collectively owns more than forty-nine (49%) in the aggregate of the foregoing actions. Shareholder agrees that any Transfer direct and/or indirect interests of Subject Shares not permitted hereby Borrower and as of the Assumption Date such Person and its Affiliates collectively owned forty-nine percent (49%) or less in the aggregate of the direct and/or indirect interests of Borrower, Lender shall have received an Additional Insolvency Opinion reasonably satisfactory to Lender and the Rating Agencies.
(e) Notwithstanding the other provisions of this Section 5.2.10, Transfers of one hundred percent (100%) of the direct and/or indirect interests in Borrower or transfers of the Property, shall be null permitted with Lender’s prior written consent, which consent shall not be unreasonably withheld after consideration of all relevant factors and void ab initio provided that Borrower satisfies the following conditions:
(i) no Event of Default has occurred and that any such prohibited Transfer may is continuing;
(ii) the proposed transferee (“Transferee”) shall be a reputable entity or person of good character, creditworthy, and should shall have sponsorship with sufficient financial worth considering the obligations assumed and undertaken, as evidenced by financial statements and other information reasonably requested by Lender;
(iii) the Transferee or its sponsor and its property manager shall have sufficient experience in the ownership and management of properties similar to the Property, and Lender shall be enjoined. If any involuntary Transfer of any provided with reasonable evidence thereof (and Lender reserves the right to approve the Transferee without approving the substitution of the Company Shares occurs property manager);
(includingiv) if a Securitization has occurred, but confirmation in writing from the Rating Agencies to the effect that such transfer will not limited toresult in a re-qualification, a sale by Shareholder’s trustee reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any bankruptcyapplicable Securitization;
(v) Lender shall have received evidence reasonably satisfactory to it (which shall include a legal non-consolidation opinion reasonably acceptable to Lender) that the single purpose nature and bankruptcy remoteness of Transferee following such transfers are in accordance with the standards of the Rating Agencies;
(vi) the Transferee shall have executed and delivered to Lender an assumption agreement in form and substance reasonably acceptable to Lender, or a sale evidencing such Transferee’s agreement to a purchaser at any creditor’s or court sale)abide and be bound by the terms of the Note, the transferee Mortgage and the other Loan Documents, together with such legal opinions and title insurance endorsements as may be reasonably requested by Lender;
(which term, as used herein, vii) Lender shall include any and all transferees and subsequent transferees have received from Borrower or Transferee on or prior to the date of the initial transfereesale or transfer (A) shall take and hold such Company Shares subject an assumption fee equal to all one percent (1.0%) of the restrictionsLoan amount, liabilities (B) a rating confirmation fee for each of the Rating Agencies delivering a confirmation pursuant to clause (iv) above, which confirmation fees shall be equal to the then customary fees charged by each applicable Rating Agency for such a confirmation and rights under (C) the payment of all out-of-pocket third-party costs and expenses incurred by Lender, Servicer and the Rating Agencies in connection with such assumption (including reasonable attorneys’ fees and costs); and
(viii) Borrower shall have provided to Lender at least thirty (30) days prior written notice of such proposed transfer.
(f) Notwithstanding anything to contrary contained in this Agreement, provided that no Event of Default has occurred and is continuing, certain owners of Borrower shall be permitted to obtain mezzanine financing (the “Subordinate Mezzanine Loan”), which Subordinate Mezzanine Loan shall continue be secured by the membership or partnership interests in full force Hotel Owner and/or Hotel Operator (as applicable) or the owners of Borrower, subject to the following conditions and requirements:
(i) Lender’s review and approval in its reasonable discretion of the terms and conditions of the Subordinate Mezzanine Loan and the documents evidencing the Subordinate Mezzanine Loan, but only to the extent such review of the documents is to confirm such terms and conditions;
(ii) the Subordinate Mezzanine Loan shall only be payable out of any excess cash flow from the Property;
(iii) the Subordinate Mezzanine Loan together with the Loan (and any New Mezzanine Loan) shall have a combined loan-to-value ratio of no greater than eighty percent (80%);
(iv) the lender under the Subordinate Mezzanine Loan shall enter into, and be subject to, an intercreditor agreement in the form and substance reasonably satisfactory to Lender in its reasonable discretion (the “Subordinate Mezzanine Intercreditor Agreement”);
(v) the Subordinate Mezzanine Loan shall be nonrecourse as to principal and interest required to be paid under the Subordinate Mezzanine Loan and shall not be secured by a lien against the Property;
(vi) Borrower shall reimburse Lender for all reasonable out-of-pocket expenses incurred by Lender in reviewing the Subordinate Mezzanine Loan documents and negotiating and documenting the Subordinate Mezzanine Intercreditor Agreement;
(vii) Borrower shall have obtained and delivered to Lender at Borrower’s sole cost and expense a confirmation in writing from each of the Rating Agencies that such Subordinate Mezzanine Loan will not result in a requalification, reduction, downgrade or withdrawal of the ratings in effect immediately before such Subordinate Mezzanine Loan was incurred for the Term. The Company agrees that if Shareholder attempts to Transfer, vote Securities or provide any other Person class thereof issued in connection with a Securitization which are then outstanding; and
(viii) the authority to vote any final capital structure of the Company Shares other than Subordinate Mezzanine Loan is subject in strict compliance with this Agreementall respects to the Rating Agencies’ approval and to Lender’s reasonable approval, including, without limitation, any changes to the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any organizational structure of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementBorrower.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower, Mortgage Borrower and its stockholders, general partners, members, principals and (if Mortgage Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Mortgage Borrower’s ownership of the Property as a means of maintaining the value of the Property for repayment of the Debt and the performance of the other obligations of Borrower under the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the other obligations of Borrower under the Loan Documents, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or the Collateral or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20, (B) Permitted Transfers and (C) upon satisfaction of the Transfer Criteria, Permitted Conditional Transfers. Notwithstanding anything contained in this Section 5.2.10(b) or in Section 5.2.10(d) hereof, no Transfer of any direct ownership interest in Borrower or Mortgage Borrower shall be permitted.
(c) A Transfer shall include, but not be limited to, (i) directly or indirectly offer, an installment sales agreement wherein Mortgage Borrower agrees to sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Property or any interest therein, part thereof or Borrower agrees to sell the Collateral or any Person, part thereof for a price to be paid in installments; (ii) enter into any voting arrangementan agreement by Mortgage Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space Tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect Mortgage Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect to any such corporation’s stock or all the creation or issuance of the Subject Shares, new stock; (iv) agree to divest itself if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any voting rights in general partner or any profits or proceeds relating to such partnership interest, or the Subject Shares Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit if a Restricted Party is a limited liability company, any merger or agree to take consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the foregoing actions. Shareholder agrees that membership interest of a managing member (or if no managing member, any Transfer member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of Subject Shares not permitted hereby shall be null and void ab initio and that non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any merger, consolidation or the Sale or Pledge of the Company Shares occurs legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, but not limited towithout limitation, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transfereean Affiliated Manager) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance accordance with Section 5.1.22 hereof.
(d) Except as otherwise permitted under the definition of Permitted Transfers and Permitted Conditional Transfers and notwithstanding the provisions of this AgreementSection 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the Company limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, the REIT must continue to Control Borrower, Mortgage Borrower and Guarantor and own, directly or indirectly, at least a seventy-five percent (75%) legal and beneficial interest in Borrower, Mortgage Borrower and Guarantor.
(e) [Intentionally Omitted].
(f) Lender shall not (x) permit be required to demonstrate any such actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s Transfer on the Companywithout Lender’s books and recordsconsent. This provision shall apply to every Transfer regardless of whether voluntary or not, (y) issue a new certificate or instrument representing any of the Company Shares whether or permit any book entries for any such Transfer with respect not Lender has consented to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementprevious Transfer.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Global Income Trust, Inc.)
Transfers. Shareholder (a) Borrowers acknowledge that Lender has examined and relied on the experience of Borrowers and their direct and indirect members in owning and operating the Collateral and Mortgage Borrowers in agreeing to make the Loan, and will continue to rely on Borrowers’ ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Additionally, Borrowers acknowledge that Lender has examined and relied on the experience of Mortgage Borrowers and their general partners, members, principals and (if any Mortgage Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Properties and in owning intellectual property such as the IP, in agreeing to make the Loan, and will continue to rely on Mortgage Borrowers’ ownership of the Properties and the IP as a means of maintaining the value of the Properties and the IP and, therefore, indirectly the value of the Collateral, as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrowers acknowledge that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrowers default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrowers shall not, and shall not permit any Transfer Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangelicense, pledgegrant options with respect to, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) (collectively, “Transfer”)any Property or any part thereof or any legal or beneficial interest therein, or enter into any contractIP or any part thereof or any legal or beneficial interest therein, option, derivative, hedging, swap, forward or other agreement, understanding the Collateral or other arrangement any part thereof or any legal or beneficial interest therein; or (including ii) permit a Sale or Pledge of any profit sharing arrangement) with respect to a interest in any Transfer of, Restricted Party (any of the Company Shares, or any interest therein, to any Person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights actions in the Subject Shares or foregoing clauses (vi) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.or
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Transfers. Shareholder (a) Borrowers acknowledge that Lender has examined and relied on the experience of Borrowers and their general partners, members, principals and (if any Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Properties and in owning intellectual property such as the IP, in agreeing to make the Loan, and will continue to rely on Borrowers’ ownership of the Properties and the IP as a means of maintaining the value of the Properties and the IP as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrowers acknowledge that Lender has a valid interest in maintaining the value of the Properties and the IP so as to ensure that, should Borrowers default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Properties and the IP. Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrowers shall not, and shall not permit any Transfer Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangelicense, pledgegrant options with respect to, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) any Property or any part thereof or any legal or beneficial interest therein or any IP or any part thereof or any legal or beneficial interest therein, or (collectivelyii) permit a Sale or Pledge of any interest in any Transfer Restricted Party (any of the actions in the foregoing clauses (i) or (ii), a “Transfer”), other than, notwithstanding anything to the contrary contained in this Section 5.2.10, (A) pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof, including, without limitation, the HRHI Lease, (B) the pledge of the membership interests in each Borrower as collateral for the First Mezzanine Loan and, if applicable, the exercise of applicable remedies or enter into a transfer in lieu of foreclosure under the First Mezzanine Loan Documents by First Mezzanine Lender, subject to the conditions and restrictions set forth in the Intercreditor Agreement, (C) the pledge of the membership interests in First Mezzanine Borrowers as collateral for the Second Mezzanine Loan and, if applicable, the exercise of applicable remedies or a transfer in lieu of foreclosure under the Second Mezzanine Loan Documents by Second Mezzanine Lender, subject to the conditions and restrictions set forth in the Intercreditor Agreement, (D) the pledge of the membership interests in Second Mezzanine Borrowers as collateral for the Third Mezzanine Loan and, if applicable, the exercise of applicable remedies or a transfer in lieu of foreclosure under the Third Mezzanine Loan Documents by Third Mezzanine Lender, subject to the conditions and restrictions set forth in the Intercreditor Agreement, (E) any contractRelease Parcel Sale, optionany Adjacent Parcel Sale or an IP Sale, derivativein each instance in accordance with the applicable provisions of Section 2.5 hereof, hedging(F) a conveyance of the Deeded Adjacent Property as contemplated by Section 3.2(u) hereof, swap(G) any IP License or Adjacent Property IP License granted in accordance with the provisions of Section 5.1.26 hereof, forward (H) Permitted Encumbrances and Permitted IP Encumbrances, (I) the issuance of new stock in, the merger or other agreementconsolidation of, understanding and/or the Sale or other arrangement Pledge of the stock in, any Publicly Traded Entity who owns a direct or indirect ownership interest in any Transfer Restricted Party, (including J) the transfer of indirect ownership interests in any profit sharing arrangementBorrower(s) in order to create one or more new mezzanine borrowers for any New Mezzanine Loan as contemplated hereunder, including, without limitation, the transfers of ownership interests which were necessary to create Third Mezzanine Borrowers and the admission of a new member in each of the Second Mezzanine Borrowers in connection with respect the creation of the Third Mezzanine Borrowers, and (K) the transfer by deed of any applicable Partial Release Parcel and/or Partial Adjacent Parcel to a Subsidiary Transferee and the subsequent transfer of all of the membership interests held by Adjacent Borrower in such Subsidiary Transferee, in each instance in accordance with Section 2.5.1(f) or 2.5.2(f) hereof, as applicable; provided, however, that in the case of each of the foregoing clauses (A) – (K), such Transfer ofshall only be permitted hereunder if it does not violate any Legal Requirements, including specifically, but without limitation, any of the Company SharesGaming Laws.
(b) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein any Borrower agrees to sell a Property or any interest therein, part thereof or the IP or any part thereof for a price to any Person, be paid in installments; (ii) enter into an agreement by any voting arrangementBorrower leasing all or a substantial part of a Property for other than actual occupancy by a space tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect any Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Transfer Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect to any such corporation’s stock or all the creation or issuance of the Subject Shares, new stock; (iv) agree to divest itself if a Transfer Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation, admission or addition of a general partner or the Sale or Pledge of the general partnership interest of any voting rights in general partner or any profits or proceeds relating to such partnership interest, or the Subject Shares Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit if a Transfer Restricted Party is a limited liability company, any merger or agree to take consolidation or the change, removal, resignation, admission or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the foregoing actions. Shareholder agrees that membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing or managing membership interests or the creation or issuance of new non-managing or managing membership interests; (vi) if a Transfer Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Transfer Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of any Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(c) Notwithstanding the provisions of this Section 5.2.10, so long as the following Transfers do not violate any Legal Requirements in any instance, including specifically, but without limitation, any Gaming Laws, or cause or otherwise result in the suspension, termination and/or revocation of any Gaming License, the HRHI Lease, the Gaming Sublease or the Casino Component Lease, as applicable, the following Transfers may occur without the consent of Lender or the payment of any transfer or other fee, excluding, however, any Transfer of Subject Shares not permitted hereby shall be null (i) any direct interest in any Borrower for so long as the First Mezzanine Loan, the Second Mezzanine Loan or the Third Mezzanine Loan is outstanding, and/or (ii) any direct interest in any First Mezzanine Borrower for so long as the Second Mezzanine Loan or the Third Mezzanine Loan is outstanding, and/or (iii) any direct interest in any Second Mezzanine Borrower for so long as the Third Mezzanine Loan is outstanding:
(A) the Transfer of any direct or indirect interest in any Transfer Restricted Party, provided that (1) no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default has occurred and void ab initio is continuing, (2) (y) one or both Guarantors continue to Control, directly or indirectly, each Borrower and that HRHI, and (z) one or both Guarantors own, directly or indirectly, at least a fifty-one percent (51%) economic interest in each Borrower and in HRHI, (3) Lender receives (y) at least ten (10) days prior written notice of any such prohibited voluntary Transfer may and should be enjoined. If copies of the documents transferring such interest, or (z) written notice of any such involuntary Transfer and copies of the documents transferring such interest within thirty (30) days following such involuntary Transfer, (4) if after such Transfer any Person and its Affiliates collectively would own more than forty-nine (49%) in the aggregate of the direct and/or indirect interests of any Borrower and as of the Closing Date such Person and its Affiliates collectively owned forty-nine percent (49%) or less in the aggregate of the direct and/or indirect interests of any Borrower, Lender shall have received, prior to such Transfer, an Additional Insolvency Opinion reasonably satisfactory to Lender and the Rating Agencies and, if a Securitization has occurred, a confirmation in writing from the Rating Agencies to the effect that such Transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any applicable Securitization, and (5) Borrowers deliver to Lender a copy of any consents or approvals required by any Governmental Authority, including specifically, but without limitation, any Gaming Authority, in connection with such Transfer;
(B) the Transfer of any direct or indirect interest in any Transfer Restricted Party to any other Person who is, as of the Closing Date, a holder of any direct or indirect interest in any Transfer Restricted Party, provided that (1) no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default has occurred and is continuing, (2) (y) one or both Guarantors continue to Control, directly or indirectly, each Borrower and HRHI, and (z) one or both Guarantors own, directly or indirectly, at least a fifty-one percent (51%) economic interest in each Borrower and in HRHI, (3) Lender receives (y) at least ten (10) days prior written notice of any such voluntary Transfer and copies of the documents transferring such interest, or (z) written notice of any such involuntary Transfer and copies of the documents transferring such interest within thirty (30) days following such involuntary Transfer, and (4) Borrowers deliver to Lender a copy of any consents or approvals required by any Governmental Authority, including specifically, but without limitation, any Gaming Authority, in connection with such Transfer;
(C) the Transfer of any direct or indirect interest in any Transfer Restricted Party by inheritance, devise, bequest or operation of law upon the death of a natural person who owned such interest, provided that (1) such Transfer is to a non-minor member of the immediate family of the deceased holder of such interest or a trust established for the benefit of one or more members of the immediate family of the deceased holder of such interest, (2) (y) one or both Guarantors continue to Control, directly or indirectly, each Borrower and HRHI, and (z) one or both Guarantors own, directly or indirectly, at least a fifty-one percent (51%) economic interest in each Borrower and in HRHI, (3) such Transfer shall not result in a change of Control of the day-to-day operations of any of the Company Shares occurs Properties, (4) Lender receives written notice of such Transfer and copies of the documents transferring such interest not later than thirty (30) days following such Transfer, (5) the legal and financial structure of each Borrower and the other Transfer Restricted Parties, and the single purpose nature and bankruptcy remoteness of each Borrower and the other Transfer Restricted Parties, after such Transfer shall satisfy the applicable provisions of the Loan Documents, including, but not limited towithout limitation, Section 4.1.30 hereof, (6) if after such Transfer any Person and its Affiliates would collectively own more than forty-nine (49%) in the aggregate of the direct and/or indirect interests of any Borrower and as of the Closing Date such Person and its Affiliates collectively owned forty-nine percent (49%) or less in the aggregate of the direct and/or indirect interests of any Borrower, Lender shall have received an Additional Insolvency Opinion reasonably satisfactory to Lender and the Rating Agencies and, if a Securitization has occurred, a sale by Shareholder’s trustee confirmation in writing from the Rating Agencies to the effect that such Transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any bankruptcyapplicable Securitization, and (7) Borrowers deliver to Lender a copy of any consents or approvals required by any Governmental Authority, including specifically, but without limitation, any Gaming Authority, in connection with such Transfer; and
(1) the merger or consolidation of any Guarantor or any Constituent Member of any Guarantor with or into any other Person, (2) the sale of any Guarantor or substantially all of any Guarantor’s assets to any other Person, or a sale to a purchaser at (3) the issuance of new stock or limited partnership or membership interests in, and/or the Sale or Pledge of stock, limited partnership or membership interests in, any creditor’s Guarantor or court sale), the transferee any Constituent Member thereof (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than occurrences in strict compliance the foregoing clauses (1), (2) or (3), a “Guarantor Transfer”); provided, that, in each of the foregoing instances, whether or not the applicable Guarantor or the applicable Constituent Member of a Guarantor is or is not a Publicly Traded Company, (I) after giving effect to such Guarantor Transfer, when viewed both individually and together with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and recordsprior Guarantor Transfers, (y) issue the Guarantors, collectively, shall continue to satisfy the Net Worth Requirements, and (z) at least one of the Guarantors shall be a new certificate Qualified Real Estate Guarantor, (II) except if the applicable Guarantor or instrument representing the applicable Constituent Member of a Guarantor is a Publicly Traded Company, Lender receives at least ten (10) days prior written notice of any such Guarantor Transfer, (III) if after such Guarantor Transfer any Person and its Affiliates collectively would own more than forty-nine (49%) in the aggregate of the direct and/or indirect interests of any Borrower and as of the Closing Date such Person and its Affiliates collectively owned forty-nine percent (49%) or less in the aggregate of the direct and/or indirect interests of any Borrower, Lender shall have received, prior to such Guarantor Transfer, an Additional Insolvency Opinion reasonably satisfactory to Lender and the Rating Agencies and, if a Securitization has occurred, a confirmation in writing from the Rating Agencies to the effect that such Guarantor Transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any applicable Securitization, and (IV) Borrowers deliver to Lender a copy of any consents or approvals required by any Governmental Authority, including specifically, but without limitation, any Gaming Authority, in connection with such Guarantor Transfer.
(d) With respect to any Transfer permitted under this Section 5.2.10 or otherwise consented to by Lender, Borrower shall pay all fees and expenses incurred by Lender in connection with such Transfer, including, without limitation, the cost of any third party reports, reasonable legal fees and expenses, Rating Agency fees and expenses and required legal opinions.
(e) Notwithstanding anything to the contrary set forth in this Agreement or in any of the Company Shares other Loan Documents, Borrowers expressly acknowledge and agree, on behalf of themselves and the other Transfer Restricted Parties, that any Transfer or permit Guarantor Transfer stated to be permitted hereunder or thereunder shall only be permitted if it does not violate any book entries for Legal Requirements, including specifically, but without limitation, any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementGaming Laws.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower's ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Properties.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this SECTION 5.2.10, Borrower shall not, and shall not permit any Restricted Party do any of the following (collectively, a "TRANSFER"): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Properties or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of SECTION 5.1.20.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Properties or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of any Individual 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, Borrower's right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation's stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with SECTION 5.1.22 hereof.
(d) Notwithstanding the provisions of this SECTION 5.2.10, Lender's consent shall not be required in connection with (i) one or a series of Transfers, of up to forty-nine percent (49%) of the stock in a Restricted Party, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party (ii) any transfer to Behringer Harvard Funds or an Affiliate of Behringer Harvard Funds or (iii) any transfer of an equity interest in Behringer Harvard Funds or any Affiliate thereof or the issuance of additional equity interests in Behringer Harvard or any Affiliate thereof; PROVIDED, HOWEVER, no such Transfer shall result in the change of Control in Borrower, Guarantor or Property Manager. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, as a condition to any Transfer pursuant to this SECTION 5.2.10(D), at all times, Guarantor must continue to Control Borrower and own, directly or indirectly, at least a 51% legal and beneficial interest in Borrower.
(e) No consent to any assumption of the Loan shall occur on or before the first (1st) anniversary of the first (1st) Payment Date. Thereafter, Lender's consent to a one (1) time Transfer of the Properties shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay Lender a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan at the time of such transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender's counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the "TRANSFEREE") or Transferee's Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee's Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee's Principals and all other entities which may be owned or Controlled directly or indirectly offerby Transferee's Principals ("RELATED ENTITIES") must not have been party to any bankruptcy proceedings, sell (including short sales)voluntary or involuntary, transfer, tender, assign, exchange, pledge, encumber made an assignment for the benefit of creditors or otherwise dispose taken advantage of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Sharesinsolvency act, or any interest thereinact for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to any PersonLender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee's Principals or Related Entities which is not reasonably acceptable to Lender;
(iiviii) enter into any voting arrangementTransferee, whether by proxy, voting agreement Transferee's Principals and Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee's Principals must be able to satisfy all the representations and covenants set forth in SECTIONS 4.1.30 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee's Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements and covenants reasonably required by Lender;
(x) Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Sharesratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(xi) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender;
(iiixii) Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty and environmental indemnity reasonably satisfactory to Lender;
(xiii) Borrower or Transferee shall deliver, at its sole cost and expense, an endorsement to the Title Insurance Policies, as modified by the assumption agreement, as a valid first lien on the Properties and naming the Transferee as owner of the Properties, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Properties shall not be subject to any additional exceptions or liens other than those contained in the relevant Title Policy issued on the date hereof and other Permitted Encumbrances; and
(xiv) Each Individual Property shall be managed by a Qualifying Property Manager pursuant to a Replacement Management Agreement. Immediately upon a Transfer to such Transferee and the satisfaction of all of the above requirements, the named Borrower and Guarantor herein shall be released from all liability under this Agreement, the Note, the Mortgage and the other Loan Documents accruing after such Transfer. The foregoing release shall be effective upon the date of such Transfer, but Lender agrees to provide written evidence thereof reasonably requested by Borrower.
(f) Borrower, without the consent of Lender, may grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no transfer, conveyance or encumbrance shall materially impair the utility and operation of the related Individual Property or materially adversely affect the value of the related Individual Property or the Net Operating Income of such Individual Property. If Borrower shall receive any proxies consideration in connection with any of said described transfers or powers conveyances, Borrower shall have the right to use any such proceeds in connection with any alterations performed in connection therewith, or required thereby. In connection with any transfer, conveyance or encumbrance permitted above, the Lender shall execute and deliver any instrument reasonably necessary or appropriate to evidence its consent to said action or to subordinate the Lien of attorney the related Mortgage to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by the Lender of: (A) a copy of the instrument of transfer; and (B) an Officer's Certificate stating with respect to any or all transfer described above, that such transfer does not materially impair the utility and operation of the Subject Shares, related Individual Property or materially reduce the value of such Individual Property or the Net Operating Income of such Individual Property.
(ivg) agree Lender shall not be required to divest itself demonstrate any actual impairment of its security or any voting rights increased risk of default hereunder in order to declare the Subject Shares Debt immediately due and payable upon Borrower's Transfer without Lender's consent. This provision shall apply to every Transfer regardless of whether voluntary or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcynot, or a sale to a purchaser at any creditor’s whether or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect Lender has consented to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementprevious Transfer.
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning the Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the other obligations of Borrower set forth in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower (or any other party that is liable for the Debt, whether as a primary obligor or as a guarantor thereof) default in the repayment of the Debt or performance of the other obligations of Borrower set forth in the Loan Documents, Lender can recover the Debt by a sale of the Collateral. Notwithstanding anything contained in this Agreement to the contrary and notwithstanding that certain Transfers are permitted herein and notwithstanding that certain Sales or Pledges are excluded from being Transfers pursuant to Section 5.2.10(d) below, Canadian Trust shall at all times own 100% of the interests of Canadian Mortgage Borrower.
(b) Without the prior written consent of Lender and except for (a) Permitted Encumbrances (with respect to the Mortgage Loan Collateral), (b) the release of any Individual Property by the applicable Mortgage Loan Party in accordance with Section 2.5, and (c) to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Collateral, the Senior Mezzanine Collateral or the Mortgage Loan Collateral or any part of the foregoing or any legal or beneficial interest in the foregoing or (ii) permit a Sale or Pledge of an interest in any Restricted Party other than (A) pursuant to (I) Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 and (II) occupancy agreements with hotel guests, and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the applicable Collateral or any part thereof or Mortgage Borrower or any other Mortgage Loan Party agrees to sell the applicable Mortgage Loan Collateral or any other Mortgage Loan Collateral or any part of the foregoing or Senior Mezzanine Borrower agrees to sell the Senior Mezzanine Collateral or any part thereof, in each case for a price to be paid in installments; (ii) with the exception of the Operating Lease, an agreement by Mortgage Borrower or Property Owner leasing all or a substantial part of any Individual 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, Mortgage Borrower’s, Operating Lessee’s or Property Owner’s or any other Mortgage Loan Party’s (as applicable) right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, the following shall not be deemed to be a Transfer:
(i) A Public Sale; provided, that (A) if after giving effect to any such Public Sale, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party is owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender and while the Loan is securitized and Securities therein are outstanding, the Approved Rating Agencies, (B) while the Loan is securitized and Securities therein are outstanding, Lender shall have received a Rating Agency Confirmation from each of the Approved Rating Agencies with respect to such Public Sale, (C) (1) no Individual Borrower shall fail to be a Special Purpose Entity by reason of such Public Sale, (2) Senior Mezzanine Borrower shall not fail to be a Special Purpose Entity (as defined in the related Senior Mezzanine Loan Agreement) by reason of such Public Sale, and (3) no Mortgage Loan Party shall fail to be a Special Purpose Entity (as defined in the Mortgage Loan Agreement) by reason of such Public Sale, (D) for so long as the Loan shall remain outstanding, no Sale or Pledge of any direct interest in Mortgage Borrower or any other Mortgage Loan Party pledged as a portion of the Mezzanine A Collateral shall be permitted, (E) intentionally omitted, (F) for so long as the Loan shall remain outstanding, no Sale or Pledge of any direct interests in Mezzanine A Borrower pledged as a portion of the Collateral shall be permitted in connection with a Public Sale, (G) for so long as the Mezzanine C Loan shall remain outstanding, no Sale or Pledge of any direct interests in Borrower pledged as a portion of the Mezzanine C Collateral shall be permitted in connection with a Public Sale, (H) for so long as the Mortgage Loan or any Mezzanine Loan shall remain outstanding, (i) no pledge or other encumbrance of any direct interests in any Restricted Pledge Party shall be permitted (except as otherwise permitted pursuant to the Mortgage Loan Documents or Mezzanine Loan Documents), provided, that a pledge of the direct ownership interests in the most upper-tier Restricted Pledge Party shall be permitted if such pledge directly or indirectly offersecures indebtedness that is also directly or indirectly secured by substantial assets other than the Collateral; provided, sell further that the provisions of this subclause (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of lawH) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, shall not apply to any Personownership interests issued pursuant to the Management Incentive Compensation Plan in accordance with the provisions of Section 5.2.10(d)(v) below, and (ii) enter into no Restricted Pledge Party shall issue preferred equity that has the characteristics of mezzanine debt (such as a fixed maturity date, regular payments of interest, a fixed rate of return and rights of the equity holder to demand repayment of its investment), and (I) immediately after giving effect to such Public Sale, the Debt Yield shall equal or exceed thirteen percent (13%).
(ii) The Sale or Pledge, in one or a series of transactions, of the direct or indirect equity interests in Borrower or direct or indirect equity interests in any voting arrangementRestricted Party; provided, whether that, (A) after giving effect to such Sale or Pledge, one or more of Guarantor (or Affiliate thereof) or any constituent member of Guarantor (or Affiliate thereof) individually, or collectively, in the aggregate (x) shall own not less than twenty-five percent (25%) of the direct or indirect legal and beneficial interests in Borrower (on an unencumbered and look-through basis) and (y) shall Control Borrower, (B) Lender shall receive notice of any Sale or Pledge described in this Section 5.2.10(d)(ii) not less than thirty (30) days following the consummation thereof (but the failure to deliver any such notice shall not cause the applicable Sale or Pledge to be a Transfer and shall not
(1) no Individual Borrower shall fail to be a Special Purpose Entity by proxyreason of such Sale or Pledge, voting agreement (2) Senior Mezzanine Borrower shall not fail to be a Special Purpose Entity (as defined in the related Senior Mezzanine Loan Agreement) by reason of such Public Sale, and (3) no Mortgage Loan Party shall fail to be a Special Purpose Entity (as defined in the Mortgage Loan Agreement) by reason of such Sale or otherwise, with respect Pledge. If after giving effect to any such Sale or Pledge, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Subject SharesClosing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and while the Loan is securitized and Securities therein are outstanding, the Approved Rating Agencies.
(iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, Any Transfer (ivhowever structured) agree to divest itself of any voting rights in the Subject Shares direct or (v) commit indirect legal or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee beneficial interests in any bankruptcyPublic Vehicle, including a Public Vehicle that exists on the date hereof or a sale to Public Vehicle which acquires a purchaser at any creditor’s direct or court sale), indirect legal or beneficial interest in Borrower after the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue Closing Date in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied accordance with the terms of this AgreementSection 5.2.10.
(iv) Any Transfer (however structured) of any legal or beneficial interests in any Guarantor or any constituent member of any Guarantor.
(v) Any Transfer of any legal or beneficial interests in ESH Hospitality Holdings LLC (or its successors or assigns) pursuant to the Management Incentive Compensation Plan, and any subsequent Transfer of any such interests once Transferred pursuant to Management Incentive Compensation Plan; provided, that Transfers pursuant the Management Incentive Compensation Plan shall in no event exceed more than ten percent (10%) of the legal or beneficial interests in ESH Hospitality Holdings, LLC (or its successors or assigns) in the aggregate.
(vi) A Sale or Pledge made by Other Mezzanine Borrower to secure the Other Mezzanine Loans in accordance with the Other Mezzanine Loan Documents and any Transfer made in connection with the exercise of remedies by an Other Mezzanine Lender pursuant to the Other Mezzanine Loan Documents.
(vii) Without limiting any other rights of Borrower under this Agreement or the other Loan Documents, any one or more of the Transfers, steps or actions contemplated by Exhibit C hereto, including, without limitation, any actual or deemed statutory conversion, merger, consolidation, reorganization or transfer of equity or assets of ESH Hospitality Holdings LLC, ESH Hospitality, XX XXX Investors, LLC, or Extended Stay or any subsidiary of the foregoing entities, including any Operating Lessee shall be permitted; provided, that the applicable conditions set forth below are satisfied (in each case, a “Restructuring”):
(A) In connection with an Asset Transfer:
I. The applicable Operating Lessee Holdco shall assume all of the obligations of the applicable Existing Operating Lessee under the Mortgage Loan Documents subject to the Lien of the Security Instruments pursuant to an assumption agreement and other documentation in form and substance reasonably satisfactory to Mortgage Lender;
II. Intentionally omitted;
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to,
(i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein, or (ii) permit a Sale or Pledge of an interest in the Property or any Restricted Party (collectively, a “Transfer”), other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 hereof.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property, or enter into any contractpart thereof, optionfor a price to be paid in installments; (ii) an agreement by Borrower leasing all or substantially all of the Property for other than actual occupancy by a space tenant thereunder, derivativeor a sale, hedging, swap, forward assignment or other agreementtransfer of, understanding or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the limited liability company interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such limited liability company interest, or the Sale or Pledge of non-managing limited liability company interests or the creation or issuance of new non-managing limited liability company interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other arrangement than in accordance with Section 5.1.22 hereof.
(including any profit sharing arrangementd) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer and shall not require Lender’s consent: (i) the sale or transfer, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; (ii) the sale or transfer, directly or indirectly, in one or a series of transactions, of not more than forty-nine percent (49%) of the limited partnership interests or non-managing limited liability company interests (as the case may be) in a Restricted Party; provided, however, that with respect to each such sale or transfer (A) no such sales or transfers shall result in the change of voting control in the Restricted Party, (B) as a condition to each such sale or transfer, Lender shall receive not less than thirty (30) days prior notice of such proposed sale or transfer, (C) no such sale or transfer of any direct ownership interests in Borrower, the general partner of Borrower or Mezzanine Borrower shall be permitted, (D) Borrower shall pay or cause to be paid any and all costs imposed or incurred as a result of any such sale or transfer, including, without limitation, any transfer taxes, and (E) if after giving effect to any such sale or transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies; and (iii) the execution by Borrower of a license agreement and related documents for the operation of a health club on the Property with a wholly owned taxable reit subsidiary of the Operating Partnership provided that Borrower delivers to Lender an executed copy of such license agreement and related documents and all fees payable to Borrower arising from such license are deposited into the Lockbox Account. In addition to the requirements of this Section 5.2.10(d), except following transfers of the Property permitted pursuant to Section 5.2.10(f), at all times during the term of the Loan, the Operating Partnership must continue to control Borrower and Affiliated Manager and own, directly or indirectly, at least a fifty-one percent (51%) interest in Borrower and Affiliated Manager. The sale, transfer or issuance of stock in the REIT shall not be deemed a transfer hereunder provided the stock of the REIT is listed and traded on the New York Stock Exchange or such other nationally recognized stock exchange.
(e) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer ofwithout Lender’s written consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
(f) Notwithstanding anything to the contrary contained herein and without limiting any Transfers or rights under Section 5.2.10(g) hereof, Lender agrees that it shall not unreasonably withhold its consent to a Transfer (or to an unlimited number of Transfers) of the Company SharesProperty by Borrower (or the then owner of the Property), provided that the following terms and conditions are satisfied: (i) Borrower (or any interest therein, the then owner of the Property) shall have given at least thirty (30) days prior written notice to any Person, Lender of the proposed Transfer and the proposed Transfer shall not be effective earlier than the date that is three (3) months after the first Payment Date; (ii) enter into any voting arrangement, whether by proxy, voting agreement no Default or otherwise, with respect to any Event of the Subject Shares, Default shall have occurred or be continuing; (iii) grant any proxies or powers of attorney with respect to any or all the proposed transferee of the Subject Shares, (iv) agree to divest itself Property shall have executed and delivered an express assumption of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company Note, the Mortgage and the other Loan Documents, subject to the provisions of Section 9.4 hereof; (iv) payment of all of fees and expenses incurred in connection with such Transfer, including, without limitation, the cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses or required legal opinions; (v) payment of a non-refundable $5,000 application fee and an assumption fee equal to one-quarter of one percent (0.25%) of the Outstanding Principal Balance with respect to the initial transfer and one-half of one percent (0.50%) of the Outstanding Principal Balance with respect to each transfer thereafter; (vi) the delivery of an Additional Insolvency Opinion reflecting the proposed Transfer reasonably satisfactory in form and substance to Lender; (vii) the proposed transferee’s compliance with the representations and covenants set forth in Section 4.1.30 and Section 5.2.9 hereof; (viii) the delivery of evidence satisfactory to Lender that the single purpose nature and bankruptcy remoteness of the proposed transferee, and its shareholders, partners or members, as the case may be, following such Transfer is in accordance with the then current standards of Lender and the Rating Agencies; (ix) prior to any release of Guarantor, a substitute guarantor acceptable to Lender in its sole discretion shall not have assumed the Guaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender; (x) permit any Lender shall have received confirmation in writing from the Rating Agencies to the effect that such Transfer on the Company’s books and recordswill not result in a re-qualification, (y) issue a new certificate reduction or instrument representing any withdrawal of the Company Shares then current rating assigned to the Securities or permit any book entries for class thereof in any applicable Securitization; (xi) the satisfaction of all of the conditions set forth in Section 5.2.10(f) of the Mezzanine Loan Agreement; and (xii) the satisfaction of such Transfer 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 any Company Shares the Loan and the Property.
(g) A Transfer that are occurs by inheritance, devise or bequest or by operation of law upon the death or disability of a natural person who holds an indirect interest in uncertificated form or (z) record such voteBorrower and a Transfer by a natural person of indirect interests in Borrower for estate planning purposes shall not require the consent of Lender and no transfer fee shall be payable in connection therewith, provided that, in each case, unless such Transfer is to a non-minor member of the immediate family of the holder of such interest, or a trust established for the benefit of a member of the immediate family of the holder of such interest, and until Shareholder provided further that, in each case, each of the following transfer conditions are satisfied:
(i) no Event of Default shall have complied occurred and remain uncured;
(ii) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such transfer not less than ten (10) days prior to the date of such Transfer, or in the event that any such Transfer or series of Transfers shall result in any Person that does not own more than a 20% direct or indirect interest in Borrower as of the date hereof owning more than a 20% direct or indirect interest in Borrower, Borrower shall give Lender thirty (30) days prior written notice of such Transfer and Lender shall have an opportunity to perform its customary credit and background searches with respect to such transferee, except in the case of the death or disability of an interest holder, in which event Borrower shall give Lender notice of such Transfer within ten (10) Business Days after such Transfer;
(iii) no such Transfer of interest shall result in a change of control of Borrower (or its managing member or general partner) or the day to day operations of the Property, or, if such Transfer would result in a change of control of Borrower (or its managing member or general partner) or the day to day operations of the Property as a result of the death or disability of an interest holder that is a natural person, Lender shall have approved in good faith the Person that will control Borrower and/or the day to day operations of the Property;
(iv) the legal and financial structure of Borrower and its shareholders, partners or members, and the single purpose nature and bankruptcy remoteness of Borrower and its shareholders, partners or members, after such Transfer shall satisfy Lender’s then current applicable underwriting criteria and requirements;
(v) if, after taking into account any prior Transfers pursuant to this Section 5.2.10(g), whether to the proposed transferee or otherwise, such Transfer (or series of Transfers) shall result in (A) the proposed transferee, together with all members of his/her immediate family or any affiliates thereof, owning in the aggregate (directly, indirectly or beneficially) more than 49% of the interests in Borrower (or any entity directly or indirectly holding an interest in Borrower), or (B) a Transfer in the aggregate of more than 49% of the interests in Borrower as of the date hereof, Borrower shall deliver to Lender, (y) an Additional Insolvency Opinion reasonable satisfactory to Lender, and (z) at the request of Lender, written confirmations from the Rating Agencies that such Transfer or series of Transfers will not result in a qualification, downgrade or withdrawal of the then applicable ratings of the Securities; and
(vi) Borrower shall pay all fees and expenses incurred by Lender in connection with such Transfer, including, without limitation, the cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses and required legal opinions.
(h) Notwithstanding anything to the contrary contained herein, Operating Partnership, or its Affiliates, shall have the right to, and may, pledge, without Lender’s consent, its indirect equity interests in Borrower, other than any direct interests in Borrower, Mezzanine Borrower or General Partner, to secure (i) a loan facility or loan facilities to Operating Partnership or its Affiliates, other than Borrower, Mezzanine Borrower or General Partner, from a group of lenders for which Credit Suisse First Boston acting through its New York branch will act as initial administrative and collateral agent and (ii) related hedging arrangements in connection therewith without Lender’s consent; provided, however, that in either case, Operating Partnership or its Affiliates (other than Borrower, Mezzanine Borrower or General Partner) pledges, directly or indirectly, its equity interests in substantially all of the property owning subsidiaries in which Operating Partnership holds a direct or indirect interest, and provided further that any enforcement action taken pursuant to such pledge shall constitute a Transfer that is prohibited pursuant to the terms of this AgreementSection 5.2.10 and the holder of such pledge shall be required to comply with all of the applicable provisions of this Section 5.2.10.
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20.
(c) A Transfer shall include, but not be limited to, (i) directly an installment sales agreement wherein Borrower agrees to sell the Property or indirectly offerany part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, sell assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (including short sales)iii) if a Restricted Party is a corporation, transferany merger, tenderconsolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, any merger or operation consolidation or the change, removal, resignation or addition of law) (collectively, “Transfer”)a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or enter into the Sale or Pledge of limited partnership interests or any contract, option, derivative, hedging, swap, forward profits or other agreement, understanding proceeds relating to such limited partnership interest or other arrangement the creation or issuance of new limited partnership interests; (including any profit sharing arrangementv) with respect to if a Transfer ofRestricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the Company Sharesmembership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest thereinin a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with (i) one or a series of Transfers, of up to any Personforty-nine percent (49%) of the stock in a Restricted Party, the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party, (ii) enter any transfer to Behringer Harvard Funds or an Affiliate of Behringer Harvard Funds, (iii) any transfer of an equity interest in Behringer Harvard Funds or any Affiliate thereof or the issuance of additional equity interests in Behringer Holdings or any Affiliate thereof, or (iv) intentionally omitted; provided, however, no such Transfer shall result in the change of Control in Borrower, Guarantor or Property Manager. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, notwithstanding anything to the contrary herein, as a condition to any Transfer pursuant to this Section 5.2.10(d), at all times, Guarantor must continue to Control Borrower and own, directly or indirectly, at least a 51% legal and beneficial interest in Borrower.
(e) No consent to any assumption of the Loan shall occur on or before the first (1st) anniversary of the first (1st) Payment Date. Thereafter, Lender’s consent to Transfers of the Property shall not be unreasonably withheld provided that Lender receives sixty (60) days prior written notice of such Transfer and no Event of Default has occurred and is continuing, and further provided that the following additional requirements are satisfied:
(i) Borrower shall pay Lender a transfer fee equal to one-quarter of one percent (0.25%) of the outstanding principal balance of the Loan at the time of the first such transfer and a transfer fee equal to one-half of one percent (0.5%) of the outstanding principal balance of the Loan at the time of each subsequent transfer (provided that no transfer fee shall be payable in connection with any transfer to Behringer Harvard Funds or an Affiliate of Behringer Harvard Funds);
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) The proposed transferee (the “Transferee”) or Transferee’s Principals must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Principals shall, as of the date of such transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Principals and all other entities which may be owned or Controlled directly or indirectly by Transferee’s Principals (“Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into any voting arrangementan assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, whether by proxyTransferee’s Principals or Related Entities which is not reasonably acceptable to Lender;
(viii) Transferee, voting agreement Transferee’s Principals and Related Entities shall not have defaulted under its or otherwise, their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s Principals must be able to satisfy all the representations and covenants set forth in Sections 4.1.30 and 5.2.9 of this Agreement, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s Principals shall deliver (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and (B) all certificates, agreements and covenants reasonably required by Lender;
(x) Transferee shall be approved by the Rating Agencies selected by Lender, which approval, if required by Lender, shall take the form of a confirmation in writing from such Rating Agencies to the effect that such Transfer will not result in a requalification, reduction, downgrade or withdrawal of the Subject Sharesratings in effect immediately prior to such assumption or transfer for the Securities or any class thereof issued in connection with a Securitization which are then outstanding;
(xi) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender an Additional Insolvency Opinion reflecting such Transfer satisfactory in form and substance to Lender;
(iiixii) Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity executed by Guarantor or execute a replacement guaranty, environmental indemnity reasonably satisfactory to Lender;
(xiii) Borrower or Transferee shall deliver, at its sole cost and expense, an endorsement to the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Property and naming the Transferee as owner of the Property, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Property shall not be subject to any additional exceptions or liens other than those contained in the Title Policy issued on the date hereof and other Permitted Encumbrances;
(xiv) The Property shall be managed by a Qualifying Property Manager pursuant to a Replacement Management Agreement; and
(xv) The Transfer must be permitted under the Ground Lease or consented to by the landlord under the Ground Lease and Lender shall have received evidence of such permission or approval, as applicable, which evidence shall be reasonably satisfactory to Lender. Immediately upon a Transfer to such Transferee and the satisfaction of all of the above requirements, the named Borrower and Guarantor herein shall be released from all liability under this Agreement, the Note, the Security Instrument and the other Loan Documents accruing after such Transfer. The foregoing release shall be effective upon the date of such Transfer, but Lender agrees to provide written evidence thereof reasonably requested by Borrower.
(f) Borrower, without the consent of Lender, may grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no transfer, conveyance or encumbrance shall materially impair the utility and operation of the Property or materially adversely affect the value of the Property or the Net Operating Income of the Property. If Borrower shall receive any proxies consideration in connection with any of said described transfers or powers conveyances, Borrower shall have the right to use any such proceeds in connection with any alterations performed in connection therewith, or required thereby. In connection with any transfer, conveyance or encumbrance permitted above, the Lender shall execute and deliver any instrument reasonably necessary or appropriate to evidence its consent to said action or to subordinate the Lien of attorney the related Security Instrument to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by the Lender of: (A) a copy of the instrument of transfer; and (B) an Officer’s Certificate stating with respect to any or all transfer described above, that such transfer does not materially impair the utility and operation of the Subject Shares, (iv) agree to divest itself of any voting rights in Property or materially reduce the Subject Shares or (v) commit or agree to take any value of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any Property or the Net Operating Income of the Company Shares occurs Property.
(including, but g) Lender shall not limited to, a sale by Shareholderbe required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon Borrower’s trustee in any bankruptcyTransfer without Lender’s consent. This provision shall apply to every Transfer regardless of whether voluntary or not, or a sale to a purchaser at any creditor’s whether or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect Lender has consented to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreementprevious Transfer.
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and, if Borrower is a trust, beneficial owners in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on the same as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or should Borrower default in the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Properties.
(a) Without the prior written consent of Lender and except to the extent otherwise expressly set forth in this Section 5.2.10, no Individual Borrower shall, nor shall notpermit any Restricted Party to, do any of the following (i) directly individually or indirectly offer, sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, a “Transfer”), or enter into any contract(i) sell, optionconvey, derivativemortgage, hedginggrant, swapbargain, forward or other agreementencumber, understanding or other arrangement (including any profit sharing arrangement) pledge, assign, grant options with respect to a Transfer of, any of the Company Sharesto, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein, to any Person, (ii) enter into a PACE Loan, or (iii) permit a Sale or Pledge of an interest in any voting arrangementRestricted Party, whether other than pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.21.
(b) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell one or more Individual Properties or any part thereof for a price to be paid in installments; (ii) an agreement by proxyBorrower leasing all or a substantial -83- part of any Individual Property for other than actual occupancy by a space tenant thereunder or a sale, voting agreement assignment or otherwiseother transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with respect Section 5.1.23 hereof; and (viii) if Borrower enters into, or the Properties are subjected to, any PACE Loan.
(c) Notwithstanding the provisions of this Section 5.2.10, provided that no Event of Default shall have occurred and be continuing, subject to the penultimate sentence of this clause (d), Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the direct or indirect interests (as the case may be) in a Restricted Party (provided that any such Transfers by any Advisor Party that is not a Restricted Party of direct or indirect interests in Guarantor shall not be required to satisfy the conditions in the remainder of this sentence), nor shall the same constitute a Transfer prohibited by this Agreement or any of the Subject Sharesother Loan Documents; provided, however, that, in the case of each such Transfer, (w) no such Transfer shall result in a change of Control in a Borrower or Guarantor, (x) the Properties shall be managed by a Qualified Manager pursuant to the Management Agreement or a Replacement Management Agreement, (y) if, as a result of the consummation of such Transfer, the organizational chart of Borrower attached hereto as Schedule III would no longer be accurate, Borrower shall deliver to Lender an updated organizational chart, together with an Officer’s Certificate, certifying that such updated organizational chart is true, correct and complete, and (z) in the event of any such Transfer resulting in any Person and its Affiliates that did not own in the aggregate more than ten percent (10%) of the direct or indirect interests in Borrower prior to such transfer, owning in excess of ten percent (10%) of the ownership interest in Borrower, Borrower shall provide to Lender, not less than ten (10) Business Days prior to such transfer, the name and identity of each proposed transferee, together with the names of its controlling principals, the social security number or employee identification number of such transferee and controlling principals, and such transferee’s and controlling principal’s home address or principal place of business, and home or business telephone number and (A) the proposed transferee must satisfy Lender’s then current “know your customer” standards and (B) Borrower shall have provided to Lender an Officer’s Certificate identifying the -84- name and address of the proposed transferee and affirming that such proposed transferee is not a Embargoed Person. If after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than seven (7) Business Days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion generally in form and substance consistent with the Insolvency Opinion provided to Lender on the Closing Date or otherwise reasonably acceptable to Lender and the Rating Agencies. In addition, (i) at all times (except in connection with the one-time assumption of the Loan pursuant to subsection (h) below), Guarantor must continue to Control Borrower, and own, directly or indirectly, at least a fifty-one percent (51%) legal and beneficial interest in Borrower and (ii) in no event shall the Advisor Parties own more than five percent (5%) in the aggregate of the interests in Guarantor, Borrower or any subsidiary of Guarantor that owns a direct or indirect interest in Borrower. Notwithstanding anything to the contrary herein but without limiting the restrictions on Transfers of direct and indirect interests in Borrower, no withdrawal, removal or replacement of any advisor to Guarantor or REIT or the transfer or pledge of the direct or indirect equity interests in such advisor shall be deemed a Transfer or a change in Control or a violation of any provisions of this Agreement or the Loan Documents provided, that, Borrower and Guarantor shall provide to Lender reasonable prior written notice of such withdrawal, removal or replacement of such Person’s advisor.
(d) Notwithstanding the foregoing, provided that no Event of Default shall have occurred and be continuing, Lender’s consent shall not be required in connection with a Permitted Pledge.
(e) Notwithstanding the foregoing, neither Lender’s consent nor notice to Lender shall be required in connection with the issuance of any share or stock or any sale or transfer by a shareholder of any shares of REIT or any other corporation or REIT the shares of which are publicly traded on the New York Stock Exchange or any other nationally or internationally recognized securities exchange or quoted on a nationally or internationally recognized automated quotation system, including, without limitation, NASDAQ, nor shall any such sale, transfer or issuance of stock constitute a Transfer prohibited by this Agreement or the other Loan Documents provided that after such sale, transfer or issuance of stock or units in REIT or such other publicly traded real estate investment trust or corporation, such entity continues to be publicly traded on the New York Stock Exchange or any other nationally or internationally recognized securities exchange or quoted on a nationally or internationally recognized automated quotation system.
(f) No Transfer of the Properties and assumption of the Loan shall occur during the period that is sixty (60) days prior to and sixty (60) days after a Securitization. At any other time upon thirty (30) days prior written notice to Lender, Borrower shall have the one-time right to convey the Properties to a new borrower (or new borrowers) (collectively, a “Transferee”) in connection with a sale of all of the Properties to such Transferee and have Transferee assume all of Borrower’s obligations under the Loan Documents, subject to the satisfaction of the following conditions: (i) no Event of Default shall have occurred and be continuing, (ii) unless the Transferee -85- is a Qualified Transferee, Lender shall have consented to such Transferee, which consent shall not be unreasonably withheld, conditioned or delayed, (iii) grant any proxies or powers of attorney with respect to any or all if reasonably required by Lender, a modification of the Subject Sharesterms hereof, the Note, the Security Instruments or the other Loan Documents provided, that, any such modification shall not increase the obligations or decrease the rights of Borrower or increase the rights or decrease the obligations of Lender under any of the Loan Documents; (iv) agree to divest itself an assumption of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not Note, the Security Instruments and the other Loan Documents as so modified by Transferee, subject to the provisions of Section 9.4 hereof; (v) payment of all of fees and expenses incurred in connection with such Transfer including, without limitation, the cost of any third party reports, legal fees and expenses, application fees, Rating Agency fees and expenses or reasonably required legal opinions; (vi) the payment of an assumption fee equal to one percent (1.0%) of the outstanding principal balance of the Loan; (vii) the delivery of an Additional Insolvency Opinion reflecting the proposed transfer generally in form and substance consistent with the Insolvency Opinion provided to Lender at the closing of this Loan or otherwise reasonably acceptable to Lender and the Rating Agencies; (viii) Transferee’s continued compliance with the representations and covenants set forth in Section 4.1.9, Section 4.1.30, Section 4.1.35, Section 5.1.24 and Section 5.2.9 hereof; (ix) the delivery of evidence satisfactory to Lender that Transferee is a Special Purpose Entity in accordance with the then current standards of Lender and the Rating Agencies; (x) permit prior to any release of Guarantor, a substitute guarantor reasonably acceptable to Lender and satisfying the Guarantor Financial Covenants shall have assumed the Guaranty and Environmental Indemnity executed by Guarantor or executed a replacement guaranty and environmental indemnity reasonably satisfactory to Lender and delivered an Additional Insolvency Opinion covering the replacement guarantor, whereupon the previous Guarantor shall be released from any further liability under the Guaranty for acts that arise from and after the date of such Transfer on and such substitute guarantors shall be the Company’s books and records“Guarantor” for all purposes set forth in this Agreement; (xi) if required by Lender after a Securitization, (y) issue Transferee shall be approved by the Rating Agencies rating the Securities, which approval, if required by Lender, shall take the form of a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer Rating Agency Confirmation with respect to any Company Shares that are the assumption of the Loan; (xii) delivery of (A) all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender and, following a Securitization, satisfactory to the Rating Agencies and (B) all certificates, agreements and legal opinions reasonably required by Lender and consistent with those provided in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied connection with the terms closing of the Loan, (xiii) Borrower shall deliver, at its sole cost and expense, an endorsement to the Title Insurance Policy, as modified by the assumption agreement, as a valid first lien on the Properties and naming Transferee as owner of the Properties, which endorsement shall insure that, as of the date of the recording of the assumption agreement, the Properties shall not be subject to any additional exceptions or Liens other than those contained in the Title Policy issued on the date hereof and the Permitted Encumbrances, and (xiv) the Properties shall be managed by a Qualified Manager pursuant to a Replacement Management Agreement.
(g) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer without Lender’s consent. The provisions of this AgreementSection 5.2.10 shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer.
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledge, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein, or (collectivelyii) permit a Sale or Pledge of any interest in any Restricted Party (any of the actions in the foregoing clauses (i) or (ii), a “Transfer”), or enter into any contractother than pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20 hereof.
(c) A Transfer shall include, optionbut not be limited to, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementi) with respect an installment sales agreement wherein Borrower agrees to a Transfer of, any of sell the Company SharesProperty, or any interest thereinpart thereof, for a price to any Person, be paid in installments; (ii) enter into any voting arrangementan agreement by Borrower leasing all or substantially all of the Property for other than actual occupancy by a space tenant thereunder, whether by proxyor a sale, voting agreement assignment or otherwiseother transfer of, with respect or the grant of a security interest in, Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect to any such corporation’s stock or all the creation or issuance of the Subject Shares, new stock; (iv) agree to divest itself if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any voting rights in general partner or any profits or proceeds relating to such partnership interest, or the Subject Shares Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit if a Restricted Party is a limited liability company, any merger or agree to take consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the foregoing actions. Shareholder agrees that membership interest of a managing member (or if no managing member, any Transfer member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of Subject Shares not permitted hereby shall be null and void ab initio and that non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any merger, consolidation or the Sale or Pledge of the Company Shares occurs (including, but not limited to, legal or beneficial interest in a sale by Shareholder’s trustee in any bankruptcy, Restricted Party or a sale to a purchaser at any creditor’s the creation or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees issuance of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote new legal or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this Agreement.beneficial interests; or
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning the Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the other obligations of Borrower set forth in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower (or any other party that is liable for the Debt, whether as a primary obligor or as a guarantor thereof) default in the repayment of the Debt or performance of the other obligations of Borrower set forth in the Loan Documents, Lender can recover the Debt by a sale of the Collateral. Notwithstanding anything contained in this Agreement to the contrary and notwithstanding that certain Transfers are permitted herein and notwithstanding that certain Sales or Pledges are excluded from being Transfers pursuant to Section 5.2.10(d) below, Canadian Trust shall at all times own 100% of the interests of Canadian Mortgage Borrower.
(b) Without the prior written consent of Lender and except for (a) Permitted Encumbrances (with respect to the Mortgage Loan Collateral), (b) the release of any Individual Property by the applicable Mortgage Loan Party in accordance with Section 2.5, and (c) to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Collateral, the Senior Mezzanine Collateral or the Mortgage Loan Collateral or any part of the foregoing or any legal or beneficial interest in the foregoing or (ii) permit a Sale or Pledge of an interest in any Restricted Party other than (A) pursuant to (I) Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20 and (II) occupancy agreements with hotel guests, and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the applicable Collateral or any part thereof or Mortgage Borrower or any other Mortgage Loan Party agrees to sell the applicable Mortgage Loan Collateral or any other Mortgage Loan Collateral or any part of the foregoing or Senior Mezzanine Borrower agrees to sell the Senior Mezzanine Collateral or any part thereof, in each case for a price to be paid in installments; (ii) with the exception of the Operating Lease, an agreement by Mortgage Borrower or Property Owner leasing all or a substantial part of any Individual 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, Mortgage Borrower’s, Operating Lessee’s or Property Owner’s or any other Mortgage Loan Party’s (as applicable) right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.
(d) Notwithstanding the provisions of this Section 5.2.10, the following shall not be deemed to be a Transfer:
(i) A Public Sale; provided, that (A) if after giving effect to any such Public Sale, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party is owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender and while the Loan is securitized and Securities therein are outstanding, the Approved Rating Agencies, (B) while the Loan is securitized and Securities therein are outstanding, Lender shall have received a Rating Agency Confirmation from each of the Approved Rating Agencies with respect to such Public Sale, (C) (1) no Individual Borrower shall fail to be a Special Purpose Entity by reason of such Public Sale, (2) Senior Mezzanine Borrower shall not fail to be a Special Purpose Entity (as defined in the related Senior Mezzanine Loan Agreement) by reason of such Public Sale, and (3) no Mortgage Loan Party shall fail to be a Special Purpose Entity (as defined in the Mortgage Loan Agreement) by reason of such Public Sale, (D) for so long as the Loan shall remain outstanding, no Sale or Pledge of any direct interest in Mortgage Borrower or any other Mortgage Loan Party pledged as a portion of the Mezzanine A Collateral shall be permitted, (E) intentionally omitted, (F) for so long as the Mezzanine B Loan shall remain outstanding, no Sale or Pledge of any direct interests in Mezzanine A Borrower pledged as a portion of the Mezzanine B Collateral shall be permitted in connection with a Public Sale, (G) for so long as the Loan shall remain outstanding, no Sale or Pledge of any direct interests in Mezzanine B Borrower pledged as a portion of the Collateral shall be permitted in connection with a Public Sale, (H) for so long as the Mortgage Loan or any Mezzanine Loan shall remain outstanding, (i) no pledge or other encumbrance of any direct interests in any Restricted Pledge Party shall be permitted (except as otherwise permitted pursuant to the Mortgage Loan Documents or Mezzanine Loan Documents), provided, that a pledge of the direct ownership interests in the most upper-tier Restricted Pledge Party shall be permitted if such pledge directly or indirectly offersecures indebtedness that is also directly or indirectly secured by substantial assets other than the Collateral; provided, sell further that the provisions of this subclause (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of lawH) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, shall not apply to any Personownership interests issued pursuant to the Management Incentive Compensation Plan in accordance with the provisions of Section 5.2.10(d)(v) below, and (ii) enter into no Restricted Pledge Party shall issue preferred equity that has the characteristics of mezzanine debt (such as a fixed maturity date, regular payments of interest, a fixed rate of return and rights of the equity holder to demand repayment of its investment), and (I) immediately after giving effect to such Public Sale, the Debt Yield shall equal or exceed thirteen percent (13%).
(ii) The Sale or Pledge, in one or a series of transactions, of the direct or indirect equity interests in Borrower or direct or indirect equity interests in any voting arrangementRestricted Party; provided, whether that, (A) after giving effect to such Sale or Pledge, one or more of Guarantor (or Affiliate thereof) or any constituent member of Guarantor (or Affiliate thereof) individually, or collectively, in the aggregate (x) shall own not less than twenty-five percent (25%) of the direct or indirect legal and beneficial interests in Borrower (on an unencumbered and look-through basis) and (y) shall Control Borrower, (B) Lender shall receive notice of any Sale or Pledge described in this Section 5.2.10(d)(ii) not less than thirty (30) days following the consummation thereof (but the failure to deliver any such notice shall not cause the applicable Sale or Pledge to be a Transfer and shall not constitute an Event of Default unless such failure continues for ten (10) Business Days following notice of such failure from Lender), (C) for so long as the Loan is outstanding, no Sale or Pledge of any direct interest in Mortgage Borrower or other Mortgage Loan Party pledged as a portion of the Mezzanine A Collateral shall be permitted, (D) intentionally omitted, (E) for so long as the Mezzanine B Loan shall remain outstanding, no such Sale or Pledge of any direct interests in Mezzanine A Borrower pledged as a portion of the Mezzanine B Collateral shall be permitted, (F) for so long as the Loan shall remain outstanding, no Sale or Pledge of any direct interests in Mezzanine B Borrower pledged as a portion of the Collateral shall be permitted, (G) for so long as the Mortgage Loan or any Mezzanine Loan shall remain outstanding, (i) no pledge or other encumbrance of any direct interests in any Restricted Pledge Party shall be permitted (except as otherwise permitted pursuant to the Mortgage Loan Documents or the Mezzanine Loan Documents, as applicable), and except that a pledge of the direct ownership interests in the most upper-tier Restricted Pledge Party shall be permitted if such pledge directly or indirectly secures indebtedness that is also directly or indirectly secured by proxysubstantial assets other than the Collateral; provided, voting agreement or otherwise, with respect that the provisions of this subclause (G) shall not apply to any ownership interests issued pursuant to the Management Incentive Compensation Plan in accordance with the provisions of Section 5.2.10(d)(v) below, and (ii) no Restricted Pledge Party shall issue preferred equity that has the characteristics of mezzanine debt (such as a fixed maturity date, regular payments of interest, a fixed rate of return and rights of the Subject Sharesequity holder to demand repayment of its investment), and (H)
(1) no Individual Borrower shall fail to be a Special Purpose Entity by reason of such Sale or Pledge, (2) Senior Mezzanine Borrower shall not fail to be a Special Purpose Entity (as defined in the related Senior Mezzanine Loan Agreement) by reason of such Public Sale, and (3) no Mortgage Loan Party shall fail to be a Special Purpose Entity (as defined in the Mortgage Loan Agreement) by reason of such Sale or Pledge. If after giving effect to any such Sale or Pledge, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall deliver to Lender an Additional Insolvency Opinion acceptable to Lender and while the Loan is securitized and Securities therein are outstanding, the Approved Rating Agencies.
(iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, Any Transfer (ivhowever structured) agree to divest itself of any voting rights in the Subject Shares direct or (v) commit indirect legal or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee beneficial interests in any bankruptcyPublic Vehicle, including a Public Vehicle that exists on the date hereof or a sale to Public Vehicle which acquires a purchaser at any creditor’s direct or court sale), indirect legal or beneficial interest in Borrower after the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue Closing Date in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied accordance with the terms of this AgreementSection 5.2.10.
(iv) Any Transfer (however structured) of any legal or beneficial interests in any Guarantor or any constituent member of any Guarantor.
(v) Any Transfer of any legal or beneficial interests in ESH Hospitality Holdings LLC (or its successors or assigns) pursuant to the Management Incentive Compensation Plan, and any subsequent Transfer of any such interests once Transferred pursuant to Management Incentive Compensation Plan; provided, that Transfers pursuant the Management Incentive Compensation Plan shall in no event exceed more than ten percent (10%) of the legal or beneficial interests in ESH Hospitality Holdings, LLC (or its successors or assigns) in the aggregate.
(vi) A Sale or Pledge made by Other Mezzanine Borrower to secure the Other Mezzanine Loans in accordance with the Other Mezzanine Loan Documents and any Transfer made in connection with the exercise of remedies by an Other Mezzanine Lender pursuant to the Other Mezzanine Loan Documents.
(vii) Without limiting any other rights of Borrower under this Agreement or the other Loan Documents, any one or more of the Transfers, steps or actions contemplated by Exhibit C hereto, including, without limitation, any actual or deemed statutory conversion, merger, consolidation, reorganization or transfer of equity or assets of ESH Hospitality Holdings LLC, ESH Hospitality, XX XXX Investors, LLC, or Extended Stay or any subsidiary of the foregoing entities, including any Operating Lessee shall be permitted; provided, that the applicable conditions set forth below are satisfied (in each case, a “Restructuring”):
(A) In connection with an Asset Transfer:
I. The applicable Operating Lessee Holdco shall assume all of the obligations of the applicable Existing Operating Lessee under the Mortgage Loan Documents subject to the Lien of the Security Instruments pursuant to an assumption agreement and other documentation in form and substance reasonably satisfactory to Mortgage Lender;
II. Intentionally omitted;
III. Intentionally omitted;
IV. Borrower shall deliver evidence of recording of the assignment and assumption of the Operating Lease as it relates to the Operating Lease for jurisdictions where the Operating Lease or a memorandum thereof was recorded as of the Closing Date;
V. The applicable Operating Lessee Holdco shall assume all obligations of the applicable Existing Operating Lessee under third-party license agreements, including, without limitation, the Service Contracts, and to the extent required under Service Contracts, shall obtain the consent of the third party service providers party thereto to such assumption; provided, that to the extent such consent cannot be obtained Operating Lessee Holdco shall enter into replacement license agreements with such third party providers or licensors providing substantially similar third party software systems reasonably acceptable to Lender;
VI. There shall be no material litigation or adverse regulatory action pending or threatened in writing against any Operating Lessee Holdco assuming the obligations of any Operating Lessee that is not otherwise pending or threatened against the applicable Operating Lessee at the time. Borrower shall deliver customary UCC-1, judgment, bankruptcy, tax lien and litigation searches related to the applicable Operating Lessee Holdco in the jurisdiction where such Operating Lessee Holdco is organized and each jurisdiction where the Individual Properties subject to the Operating Lease being assumed are located;
VII. Operating Lessee Holdco must be able to satisfy all applicable representations and covenants in Section 4.1.30, 4.1.35, 5.1.28 and 5.2.9 of this Agreement as of the date of such Asset Transfer, and no Event of Default shall otherwise occur as a result of such Asset Transfer;
VIII. While the Loan is securitized and Securities therein are outstanding, Borrower shall deliver a Rating Agency Confirmation with respect to the Asset Transfer;
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property.
(b) Without the prior written consent of Lender, and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than (A) pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.20 and (B) Permitted Transfers.
(c) A Transfer shall include, but not be limited to, (i) directly or indirectly offer, an installment sales agreement wherein Borrower agrees to sell (including short sales), transfer, tender, assign, exchange, pledge, encumber or otherwise dispose of (including by gift, merger or operation of law) (collectively, “Transfer”), or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, Property or any interest therein, part thereof for a price to any Person, be paid in installments; (ii) enter into any voting arrangementan agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space Tenant thereunder or a sale, whether by proxyassignment or other transfer of, voting agreement or otherwisethe grant of a security interest in, with respect Borrower’s right, title and interest in and to any of the Subject Shares, Leases or any Rents; (iii) grant if a Restricted Party is a corporation, any proxies merger, consolidation or powers Sale or Pledge of attorney with respect to any such corporation’s stock or all the creation or issuance of the Subject Shares, new stock; (iv) agree to divest itself if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any voting rights in general partner or any profits or proceeds relating to such partnership interest, or the Subject Shares Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) commit if a Restricted Party is a limited liability company, any merger or agree to take consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the foregoing actions. Shareholder agrees that membership interest of a managing member (or if no managing member, any Transfer member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of Subject Shares not permitted hereby shall be null and void ab initio and that non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any merger, consolidation or the Sale or Pledge of the Company Shares occurs legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, but not limited towithout limitation, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transfereean Affiliated Manager) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this AgreementSection 5.2.10, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the stock, the Company limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Transfer shall result in the change of Control in a Restricted Party, and as a condition to each such Transfer, Lender shall receive not less than thirty (x30) permit days prior written notice of such proposed Transfer. If after giving effect to any such Transfer on Transfer, more than forty-nine percent (49%) in the Company’s books aggregate of direct or indirect interests in a Restricted Party are owned by any Person and records, its Affiliates that owned less than forty-nine percent (y49%) issue a new certificate direct or instrument representing any indirect interest in such Restricted Party as of the Company Shares or permit any book entries for Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer with respect Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Rating Agencies. In addition, at all times, Guarantor must continue to Control Borrower and own, directly or indirectly, not less than 51% of the legal and beneficial interest in Borrower.
(e) Notwithstanding any Company Shares that are provision herein to the contrary, nothing contained in uncertificated form this Loan Agreement or (z) record such vote, in each case, unless and until Shareholder any other Loan Document shall have complied be deemed to restrict or otherwise interfere with the terms ability of this Agreementthe holders of direct or indirect legal, beneficial or equitable interests in the Guarantor to Transfer such interests, whether in connection with an initial public offering of shares in Guarantor or the Persons owning direct or indirect equity interests therein, Transfers by direct or indirect investors in the Guarantor, a Permitted Revolver Loan Transfer, or otherwise.
(f) Provided Lender has provided notice to Borrower of an intended Securitization, no Transfer of the Property and assumption of the Loan shall occur during the period that is sixty
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Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners, members and (if Borrower is a trust) beneficial owners, as applicable, and principals of Borrower in owning the Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Collateral as a means of maintaining the value of the Collateral as security for repayment of the Debt and the performance of the other obligations of Borrower set forth in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Collateral so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the other obligations of Borrower set forth in the Loan Documents, Lender can recover the Debt by a sale of the Collateral.
(b) Without the prior written consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property, or all or any part of the Collateral or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party, other than, in either case, to the extent that such Transfer constitutes a Permitted Transfer. Any Transfer made without Lender’s prior written consent (to the extent that such consent is required pursuant to this Section 5.2.10) shall be null and void. For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, the Sale or Pledge of a direct or indirect interest in an Excluded Entity shall not constitute a Transfer and may be effectuated by the applicable Person without the consent of, or any notice to, Lender.
(c) A Transfer shall include, but not be limited to, (i) directly an installment sales agreement wherein Borrower agrees to sell the Collateral or indirectly offerany part thereof or Mortgage Borrower agrees to sell the Individual Property or any part thereof, sell in each case for a price to be paid in installments; (including short salesii) an agreement by Mortgage Borrower leasing all or a substantial part of an Individual 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, Mortgage Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non- member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the managing agent (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10 but subject to the final two sentences of this Section 5.2.10(d), transferLender’s consent shall not be required in connection with one or a series of Transfers, tenderof not more than forty-nine percent (49%) of the stock, assignlimited partnership interests or membership interests (provided that, exchangein the case of any multi-member Restricted Party, pledge, encumber or otherwise dispose excluding any interests of (including by gift, merger or operation of lawthe managing member) (collectivelyas the case may be) in a Restricted Party; provided, “Transfer”)however, or enter into any contract, option, derivative, hedging, swap, forward or other agreement, understanding or other arrangement (including any profit sharing arrangementi) with respect to no such Transfer shall result in the change of Control in a Transfer of, any of the Company Shares, or any interest therein, to any PersonRestricted Party, (ii) enter into any voting arrangementas a condition to each such Transfer, whether by proxyLender shall receive not less than thirty (30) days’ prior written notice of such proposed Transfer, voting agreement or otherwise, with respect to any of the Subject Shares, and (iii) grant any proxies or powers of attorney with respect if after giving effect to any such Transfer, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in a Restricted Party are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Closing Date, Borrower shall, no less than thirty (30) days prior to the effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion reasonably acceptable to Lender and, following a Securitization, acceptable to the Rating Agencies. Notwithstanding anything contained in this Section 5.2.10(d), no Transfer of any direct ownership interests in any Borrower, any SPE Constituent Entity, any Mortgage Borrower, any Mortgage SPE Constituent Entity, any Junior Mezzanine Borrower or any Junior Mezzanine SPE Entity shall be permitted. In addition, at all times, Guarantor must continue to Control Borrower, each SPE Constituent Entity, Mortgage Borrower, each Mortgage SPE Constituent Entity, each Junior Mezzanine Borrower, and each Junior Mezzanine SPE Constituent Entity and own, directly or indirectly, at least a fifty-one percent (51%) legal and beneficial interest in Borrower, each SPE Constituent Entity, Mortgage Borrower, each Mortgage Borrower SPE Constituent Entity, each Junior Mezzanine Borrower, and each Junior Mezzanine SPE Constituent Entity.
(e) No Transfer of all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any Properties and assumption of the foregoing actionsLoan shall occur during the period that is sixty (60) days prior to a Securitization or the period that is sixty (60) days after a Securitization. Shareholder agrees that any Otherwise, Lender’s consent to a one (1) time Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities Properties or of Mortgage Borrower and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and records, (y) issue a new certificate or instrument representing any of the Company Shares or permit any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such voteBorrower, in each case, unless that results in an assumption of the entire Loan and until Shareholder the Mortgage Loan by the proposed Transferee (the “Transferee”) shall be given in Lender’s sole discretion provided that Lender receives sixty (60) days’ prior written notice of such Transfer and no Event of Default has occurred and is continuing at the time Lender receives such notice and at the time such Transfer is consummated. In determining whether to consent to any proposed Transfer pursuant to this Section 5.2.10(e), Lender may require or consider, without limitation, the following actions and matters:
(i) Borrower shall pay Lender a fee equal to one-half percent (0.5%) of the outstanding principal balance of the Loan at the time of such Transfer;
(ii) Borrower shall pay any and all reasonable out-of-pocket costs incurred in connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums (whether for title insurance with respect to the Properties and/or UCC title insurance with respect to the Collateral) and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to clause (x) below);
(iii) Transferee or Transferee’s Sponsors must have demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties, which expertise shall be reasonably determined by Lender;
(iv) Transferee and Transferee’s Sponsors shall, as of the date of such Transfer, have an aggregate net worth and liquidity reasonably acceptable to Lender;
(v) Transferee, Transferee’s Sponsors and all other entities which may be owned or Controlled directly or indirectly by Transferee’s Sponsors (“Related Entities”) must not have been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors within seven (7) years prior to the date of the proposed Transfer;
(vi) Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to Lender;
(vii) There shall be no material litigation or regulatory action pending or threatened against Transferee, Transferee’s Sponsors or any Related Entities which is not reasonably acceptable to Lender;
(viii) Transferee, Transferee’s Sponsors and any Related Entities shall not have defaulted under its or their obligations with respect to any other Indebtedness in a manner which is not reasonably acceptable to Lender;
(ix) Transferee and Transferee’s SPE Constituent Entities must be able to make all of the representations set forth in Sections 4.1.30, 4.1.35, and 4.1.38 of each of this Agreement and the Mortgage Loan Agreement, and perform all of the covenants set forth in the respective Sections 5.1.27, 5.1.32 and 5.2.9 of each of this Agreement and the Mortgage Loan Agreement, as applicable, no Default or Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s SPE Constituent Entities shall deliver (A) all Organizational Documents reasonably requested by Lender, which shall be reasonably satisfactory to Lender, and (B) all certificates, agreements, covenants and legal opinions reasonably required by Lender;
(x) Following a Securitization, if required by Lender, Transferee shall be approved by the Rating Agencies rating the Loan, which approval, if required by Lender, shall take the form of a Rating Agency Confirmation with respect to such Transfer;
(xi) Prior to any release of Guarantor, one (1) or more substitute guarantors reasonably acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and the Environmental Indemnity or executed a replacement guaranty and/or environmental indemnity agreement reasonably satisfactory to Lender;
(xii) Borrower shall deliver, at its sole cost and expense, (A) an endorsement to the UCC Title Insurance Policy confirming the Lien of the Pledge Agreement, as modified by the assumption agreement, as a valid first lien on the Collateral and naming Transferee as owner of the Collateral, which endorsement shall insure that, as of the date that such Transferee assumes the Loan, the Collateral shall not be subject to any additional exceptions or Liens other than those contained in the UCC Title Insurance Policy issued on the Closing Date and (B) in the case of a Transfer that includes the Transfer of the Properties, an owner’s title insurance policy reasonably acceptable to Lender insuring that the applicable Transferee has (a) good and insurable leasehold title to each Ground Lease Property, (b) good and insurable fee simple title to the real property comprising part of each Individual Property (excluding each Ground Lease Property), and (c) good title to the balance of such Individual Property, free and clear of all Liens whatsoever except Permitted Encumbrances;
(xiii) Each Individual Property shall be managed by Qualified Manager (and, if the Qualified Manager managing any one or more Individual Properties prior to the Transfer is being replaced, the replacement Qualified Manager shall manage such Individual Properties pursuant to a Replacement Management Agreement);
(xiv) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender (A) an Additional Insolvency Opinion in respect of such Transfer satisfactory in form and substance to Lender and (B) a fraudulent conveyance opinion in respect of such Transfer, each of which opinions may be relied upon by Lender and the Rating Agencies with respect to the proposed Transfer;
(xv) if the Junior Mezzanine Loan is still outstanding, Junior Mezzanine Borrower shall have complied with all of the terms and conditions set forth in the Junior Mezzanine Loan Documents with respect to the Transfer and to effectuate the assumption of the Junior Mezzanine Loan; and
(xvi) Mortgage Borrower shall have complied with all of the terms and conditions set forth in the Mortgage Loan Documents with respect to the Transfer and the assumption of the Mortgage Loan and Mortgage Lender shall have approved such Transfer pursuant to the Mortgage Loan Documents. Immediately upon the consummation of a Transfer pursuant to this Section 5.2.10(e) (provided that Lender has consented thereto in accordance with the foregoing), each Borrower and Guarantor shall be released from all liability under this Agreement, the Note, the Pledge Agreement and the other Loan Documents and, in the case of an assumption of the Mortgage Loan, each Mortgage Borrower and Guarantor (as defined in the Mortgage Loan Agreement shall be released from all liability under the Mortgage Loan Documents, in each case accruing after the date of such Transfer (other than to the extent such liability is expressly stated herein to survive). The foregoing release shall be effective upon the date of such Transfer, but Lender agrees to provide written evidence thereof if the same is reasonably requested by Borrower.
(f) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon the consummation of a purported Transfer that is prohibited (and as such, null and void) pursuant to the terms of this AgreementSection 5.
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Brixmor Property Group Inc.)
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners, as applicable, in owning and operating properties such as the Property, in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property. Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Transfer Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangelicense, pledgegrant options with respect to, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein, or (collectivelyii) permit a Sale or Pledge of any interest in any Transfer Restricted Party (any of the actions in the foregoing clauses (i) or (ii), a “Transfer”), other than, notwithstanding anything to the contrary contained in this Section 5.2.10, (A) pursuant to Leases of space at the Property to tenants in accordance with the provisions of Section 5.1.20 hereof, (B) a Five Acre Release in accordance with Section 2.5 hereof, (C) Permitted Encumbrances, (D) the issuance of new stock in, the merger or enter consolidation of, and/or the Sale or Pledge of the stock in, any Publicly Traded Entity who owns a direct or indirect ownership interest in any Transfer Restricted Party, (E) the transfer of indirect ownership interests in Borrower in order to create one or more new mezzanine borrowers for any New Mezzanine Loan as contemplated hereunder, (F) the transfer by deed of the Six Acre Parcel to a Subsidiary Transferee and the subsequent transfer of all of the membership interests held by Borrower in such Subsidiary Transferee, in each instance in accordance with Section 5.2.11(d) hereof, as applicable, and (G) the Assumption; provided, however, that in the case of each of the foregoing clauses (A) – (G), such Transfer shall only be permitted hereunder if it does not violate any Legal Requirements.
(b) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by 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, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Transfer Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Transfer Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation, admission or addition of a general partner or the Sale or Pledge of the general partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Transfer Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation, admission or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing or managing membership interests or the creation or issuance of new non-managing or managing membership interests; or (vi) if a Transfer Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Transfer Restricted Party or the creation or issuance of new legal or beneficial interests.
(c) Notwithstanding the provisions of this Section 5.2.10, so long as the following Transfers do not violate any Legal Requirements in any instance, the following Transfers may occur without the consent of Lender or the payment of any transfer or other fee:
(A) the Transfer of any direct or indirect interest in any Transfer Restricted Party, provided that (1) no Event of Default has occurred and is continuing, (2) (y) one or both Guarantors continue to Control, directly or indirectly, Borrower, and (z) one or both Guarantors own, directly or indirectly, at least a fifty-one percent (51%) economic interest in Borrower, (3) Lender receives (y) at least ten (10) days prior written notice of any such voluntary Transfer and copies of the documents transferring such interest, or (z) written notice of any such involuntary Transfer and copies of the documents transferring such interest within thirty (30) days following such involuntary Transfer, (4) if after such Transfer any Person and its Affiliates collectively would own more than forty-nine (49%) in the aggregate of the direct and/or indirect interests of Borrower and as of the Closing Date such Person and its Affiliates collectively owned forty-nine percent (49%) or less in the aggregate of the direct and/or indirect interests of Borrower, Lender shall have received, prior to such Transfer, an Additional Insolvency Opinion reasonably satisfactory to Lender and the Rating Agencies and, if a Securitization has occurred, a confirmation in writing from the Rating Agencies to the effect that such Transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any applicable Securitization, and (5) Borrower delivers to Lender a copy of any consents or approvals required by any Governmental Authority in connection with such Transfer;
(B) the Transfer of any direct or indirect interest in any Transfer Restricted Party to any other Person who is, as of the Closing Date, a holder of any direct or indirect interest in any Transfer Restricted Party, provided that (1) no Event of Default has occurred and is continuing, (2) (y) one or both Guarantors continue to Control, directly or indirectly, Borrower, and (z) one or both Guarantors own, directly or indirectly, at least a fifty-one percent (51%) economic interest in Borrower, (3) Lender receives (y) at least ten (10) days prior written notice of any such voluntary Transfer and copies of the documents transferring such interest, or (z) written notice of any such involuntary Transfer and copies of the documents transferring such interest within thirty (30) days following such involuntary Transfer, and (4) Borrower delivers to Lender a copy of any consents or approvals required by any Governmental Authority in connection with such Transfer;
(C) the Transfer of any direct or indirect interest in any Transfer Restricted Party by inheritance, devise, bequest or operation of law upon the death of a natural person who owned such interest, provided that (1) such Transfer is to a non-minor member of the immediate family of the deceased holder of such interest or a trust established for the benefit of one or more members of the immediate family of the deceased holder of such interest, (2) (y) one or both Guarantors continue to Control, directly or indirectly, Borrower, and (z) one or both Guarantors own, directly or indirectly, at least a fifty-one percent (51%) economic interest in Borrower, (3) such Transfer shall not result in a change of Control of the day-to-day operations of the Property, (4) Lender receives written notice of such Transfer and copies of the documents transferring such interest not later than thirty (30) days following such Transfer, (5) the legal and financial structure of Borrower and the other Transfer Restricted Parties, and the single purpose nature and bankruptcy remoteness of Borrower and the other Transfer Restricted Parties, after such Transfer shall satisfy the applicable provisions of the Loan Documents, including, without limitation, Section 4.1.30 hereof, (6) if after such Transfer any Person and its Affiliates would collectively own more than forty-nine (49%) in the aggregate of the direct and/or indirect interests of Borrower and as of the Closing Date such Person and its Affiliates collectively owned forty-nine percent (49%) or less in the aggregate of the direct and/or indirect interests of Borrower, Lender shall have received an Additional Insolvency Opinion reasonably satisfactory to Lender and the Rating Agencies and, if a Securitization has occurred, a confirmation in writing from the Rating Agencies to the effect that such Transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any applicable Securitization, and (7) Borrower delivers to Lender a copy of any consents or approvals required by any Governmental Authority in connection with such Transfer; and
(D) (1) the merger or consolidation of any Guarantor or any Constituent Member of any Guarantor with or into any contractother Person, option(2) the sale of any Guarantor or substantially all of any Guarantor’s assets to any other Person, derivativeor (3) the issuance of new stock or limited partnership or membership interests in, hedgingand/or the Sale or Pledge of stock, swaplimited partnership or membership interests in, forward any Guarantor or other agreement, understanding or other arrangement any Constituent Member thereof (including any profit sharing arrangement) with respect to a Transfer of, any of the Company Shares, or any interest therein, to any Personoccurrences in the foregoing clauses (1), (ii2) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, (iii) grant any proxies or powers of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any 3), a “Guarantor Transfer”); provided, that, in each of the foregoing actions. Shareholder agrees that any Transfer instances, whether or not the applicable Guarantor or the applicable Constituent Member of Subject Shares a Guarantor is or is not permitted hereby shall be null and void ab initio and that any a Publicly Traded Company, (I) after giving effect to such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Guarantor Transfer, vote or provide when viewed both individually and together with any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company shall not (x) permit any such Transfer on the Company’s books and recordsprior Guarantor Transfers, (y) issue the Guarantors, collectively, shall continue to satisfy the Net Worth Requirements, and (z) at least one of the Guarantors shall be a new certificate Qualified Real Estate Guarantor, (II) except if the applicable Guarantor or instrument representing the applicable Constituent Member of a Guarantor is a Publicly Traded Company, Lender receives at least ten (10) days prior written notice of any such Guarantor Transfer, (III) if after such Guarantor Transfer any Person and its Affiliates collectively would own more than forty-nine (49%) in the aggregate of the direct and/or indirect interests of Borrower and as of the Closing Date such Person and its Affiliates collectively owned forty-nine percent (49%) or less in the aggregate of the direct and/or indirect interests of Borrower, Lender shall have received, prior to such Guarantor Transfer, an Additional Insolvency Opinion reasonably satisfactory to Lender and the Rating Agencies and, if a Securitization has occurred, a confirmation in writing from the Rating Agencies to the effect that such Guarantor Transfer will not result in a re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or any class thereof in any applicable Securitization, and (IV) Borrower delivers to Lender a copy of any consents or approvals required by any Governmental Authority in connection with such Guarantor Transfer.
(d) With respect to any Transfer permitted under this Section 5.2.10 or Section 5.2.11 hereof or otherwise consented to by Lender, Borrower shall pay, in addition to any amounts contemplated under Section 2.5 hereof (without duplication), all fees and expenses incurred by Lender in connection with such Transfer, including, without limitation, the cost of any third party reports, reasonable legal fees and expenses, Rating Agency fees and expenses and required legal opinions.
(e) Notwithstanding anything to the contrary set forth in this Agreement or in any of the Company Shares other Loan Documents, Borrower expressly acknowledges and agrees, on behalf of itself and the other Transfer Restricted Parties, that any Transfer or permit Guarantor Transfer stated to be permitted hereunder or thereunder shall only be permitted if it does not violate any book entries for any such Transfer with respect to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with the terms of this AgreementLegal Requirements.
Appears in 1 contract
Transfers. Shareholder (a) Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its general partners, members, principals and (if Borrower is a trust) beneficial owners in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the obligations contained in the Loan Documents, Lender can recover the Debt by a sale of the Property.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) directly or indirectly offersell, sell (including short sales)convey, transfermortgage, tendergrant, bargain, encumber, pledge, assign, exchangegrant options with respect to, pledgegrant a security interest in, encumber or otherwise transfer or dispose of (including directly or indirectly, voluntarily or involuntarily, by gift, merger or operation of lawlaw or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of an interest in any Restricted Party (collectively, “a "Transfer”"), other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.20.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or enter into any contractpart thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, option, derivative, hedging, swap, forward assignment or other agreementtransfer of, understanding or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, the following transfers shall not be deemed to be a Transfer: (i) the Sale or Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; provided, however, no such Sale or Pledge shall result in the change of voting control in the Restricted Party, and as a condition to each such Sale or Pledge, Lender shall receive not less than thirty (30) days prior notice of such proposed Sale or Pledge, (ii) the Sale or Pledge, in one or a series of transactions, of the limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such Sale or Pledge shall result in the change of voting control in the Restricted Party, (iii) the Sale or Pledge of stock in Xxxxxxx Properties, Inc. (the "Traded Entity"), provided such stock is listed on the New York Stock Exchange or such other nationally recognized stock exchange, or any Sale or Pledge or other arrangement (including any profit sharing arrangement) transaction that would otherwise constitute a transfer hereunder with respect to a Transfer ofPerson in its capacity solely as the holder of Traded Equity (and in no other capacity), any and (iv) the adjustment of partnership units held by partners in Principal to reflect redemptions pertaining to the limited partner interests in Principal. In addition, at all times, Xxxxxxx Properties, Inc. must continue to, directly or indirectly, control (subject only to customary reservations of rights in favor of other partners or members to approve the sale and/or refinancing of all or substantially all of the Company Sharesentity’s assets and other major decisions) Borrower, Guarantor and Affiliated Manager and own, directly or any indirectly, at least a 51% interest thereinin Borrower, Guarantor and Affiliated Manager.
(e) Lender shall not withhold its consent to any Persona Transfer of the Property to a Permitted Transferee (including, without limitation, an Affiliate of Borrower that is a Permitted Transferee) provided that (i) no Event of Default shall have occurred and remain uncured; (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect the Permitted Transferee shall have executed and delivered to any Lender a modification of the Subject Sharesterms hereof, the Note, the Mortgage or the other Loan Documents in form and substance acceptable to Lender; (iii) grant any proxies or powers the Permitted Transferee shall have executed and delivered to Lender an assumption of attorney with respect to any or all of the Subject Shares, (iv) agree to divest itself of any voting rights in the Subject Shares or (v) commit or agree to take any of the foregoing actions. Shareholder agrees that any Transfer of Subject Shares not permitted hereby shall be null and void ab initio and that any such prohibited Transfer may and should be enjoined. If any involuntary Transfer of any of the Company Shares occurs (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Company Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect for the Term. The Company agrees that if Shareholder attempts to Transfer, vote or provide any other Person with the authority to vote any of the Company Shares other than in strict compliance with this Agreement, the Company Note, the Mortgage and the other Loan Documents as so modified by the Permitted Transferee in form and substance acceptable to Lender, evidencing such Permitted Transferee’s agreement to abide and be bound by the terms of the Note, this Agreement and the other Loan Documents, subject to the provisions of Section 10.4 hereof; (iv) Lender shall not have received payment of all of fees and expenses incurred in connection with such transfer including, without limitation, all of Lender’s out-of-pocket expenses in connection with the approval of such transfer, the cost of any third party reports, legal fees and expenses, Rating Agency fees and expenses or required legal opinions; (v) Lender shall have received payment of a non-refundable $5,000 application fee; (vi) the Permitted Transferee shall have delivered to Lender a nonconsolidation opinion reflecting the proposed transfer satisfactory in form and substance to Lender; (vii) Lender shall have received satisfactory evidence of the Permitted Transferee’s continued compliance with the representations and covenants set forth in Section 4.1.30 and Section 5.2.9 hereof; (viii) Lender shall have received satisfactory evidence that the single purpose nature and bankruptcy remoteness of the Permitted Transferee, and as applicable, its shareholders, partners or members, as the case may be, following such transfers are in accordance with the then current standards of Lender and the Rating Agencies; (ix) prior to any release of the Guarantor, a substitute guarantor reasonably acceptable to Lender shall have assumed the Guaranty executed by Guarantor or executed a replacement guaranty reasonably satisfactory to Lender (and, upon the effective date of such assumption or replacement guaranty, the Guarantor will be released); and (x) permit any if required by Lender, confirmation in writing from the Rating Agencies to the effect that such Transfer on the Company’s books and recordstransfer will not result in a re-qualification, (y) issue a new certificate reduction or instrument representing any withdrawal of the Company Shares then current rating assigned to the Securities or permit any book entries for class thereof in any such applicable Securitization.
(f) 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 Obligations immediately due and payable upon a transfer without Lender’s consent. This provision shall apply to every Transfer with respect regardless of whether voluntary or not, or whether or not Lender has consented to any Company Shares that are in uncertificated form or (z) record such vote, in each case, unless and until Shareholder shall have complied with previous Transfer of the terms of this AgreementProperty.
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