Assumption. Borrowers shall have the right at any time to Transfer all of the Individual Properties in one transaction to another party (the “Transferee”) and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are met: (a) Borrowers shall pay to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances; (b) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender; (c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents); (d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions; (e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender; (f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above; (g) the Loan-to-Value Ratio shall not exceed 80%; and (h) Lender shall have received a Rating Agency Confirmation with respect to such Transfer.
Appears in 3 contracts
Sources: Loan Agreement, Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Assumption. Borrowers (a) Following Closing, at any time on or prior to the Designation Deadline, Buyer shall have the right, which right may be exercised at any time and from time to Transfer time, in consultation with the Sellers, to designate such Designatable Lease for assumption and assignment and shall provide notice to Sellers executed by Buyer and the Assignee (a “Buyer Assumption Notice”) of Buyer’s election to require Sellers to assume such Designatable Leases and assign the same to the Assignee identified in such Buyer Assumption Notice; provided that Buyer shall pay all Cure Costs associated with any assumption and assignment of any such Designatable Leases in accordance with the terms of Section 2.7; provided further, that the Assignee shall agree, pursuant to the Buyer Assumption Notice, to assume Buyer’s obligations under this Agreement in relation to the relevant Designatable Lease. The Buyer Assumption Notice shall provide the following information: (1) the Designatable Leases being assumed and assigned and (2) the identity of the Individual Properties in one transaction to another party (the “Transferee”) and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are met:
(a) Borrowers shall pay to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;applicable Assignee(s).
(b) Within five (5) Business Days following the identitydate upon which Buyer delivers a Buyer Assumption Notice to Sellers with respect to any Designatable Lease, experiencetogether with a related assignment agreement substantially in the form attached hereto as Exhibit E (the “Assignment and Assumption of Lease”) executed by the applicable Assignee, financial conditionSellers shall (1) deliver to Buyer and such Assignee a fully executed Assignment and Assumption of Lease and (2) file with the Bankruptcy Court and serve on the applicable lessor(s) and other appropriate notice parties (as applicable) a notice, creditworthiness, single purpose nature and bankruptcy remoteness shall seek entry by the Bankruptcy Court of the TransfereeApproval Order in respect of the Designatable Leases subject to such Buyer Assumption Notice; provided, that, in no event shall any Designation Assignment Date be prior to the Inventory Date. As of the applicable Designation Assignment Date, except for such obligations and liabilities with respect to such Designatable Leases and the replacement guarantors related Lease Premises arising during the Designation Rights Period and indemnitors except for Buyer’s obligations specifically set forth in this Agreement, as between Buyer and the Assignee, Buyer shall have no further obligation or Liability with respect to such Designatable Lease or the related Lease Premises (including any obligation to continue to pay Expenses with respect thereto) and Assignee shall thereafter be reasonably satisfactory solely responsible for all amounts payable or other obligations or liabilities that may be owed in connection with such Designatable Lease or the related Lease Premises; provided, however, that nothing in this sentence shall affect Sellers’ rights against Buyer with respect to Lender;such Designatable Lease or the Lease Premises as set forth in this Agreement.
(c) BorrowersUpon Buyer’s request prior to the last day of the Designation Rights Period (provided that the Assignee shall have notified Sellers as to the particular Assignment Instruments and Assignment Actions to be delivered and taken at least two (2) Business Days prior thereto), TransfereeSellers shall deliver to the applicable Assignee instruments reasonably necessary or desirable (as reasonably agreed between Sellers and Assignee) providing for the assignment, Guarantor conveyance and delivery to such Assignee of the replacement guarantors applicable Designatable Lease, together with the related Acquired Assets, in each case free and indemnitors shall execute and deliver clear of all Encumbrances of any and every kind, nature and description, other than Permitted Encumbrances (the “Assignment Instruments”) and shall otherwise take such actions as are reasonably necessary or desirable (as reasonably agreed by Seller and such Assignee) in order to cause such sale, transfer, assignment, conveyance and delivery to become effective (collectively, the “Assignment Actions”); provided, however, that Buyer shall be solely responsible for all documentation as may be reasonably required by Lender or required by Cure Costs in accordance with the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);terms of this Agreement.
(d) counsel The effective date of the sale, transfer, assignment, conveyance and delivery by Sellers to Transferee such Assignee of a Designatable Lease and related assets pursuant to this Agreement and the replacement guarantors applicable Assignment and indemnitors Assumption of Lease shall deliver to Lender and be the Rating Agencies customary opinion letters relating “Designation Assignment Date” with respect to such transfer (including tax Lease and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;related assets.
(e) if With respect to any Designatable Lease designated in a Buyer Assumption Notice:
(i) Sellers, at no cost, expense or Liability to Sellers, and Buyer shall each use (and Buyer shall use commercially reasonable efforts to cause Assignee to use) commercially reasonable efforts to accomplish, and shall fully cooperate with each other in, the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating resolution of any objections to the change in proposed assumption and assignment of such Designatable Lease and related assets;
(ii) Buyer shall cause Assignee to provide evidence (A) of adequate assurance of future performance within the identity meaning of section 365 of the vestee Bankruptcy Code, (B) that Assignee is a good faith purchaser for purposes of section 363(m) of the Bankruptcy Code, including, in both cases, through the provision of such financial information and/or the filing of such affidavits or declarations with the Bankruptcy Court as may reasonably be requested by Sellers, or (C) any other information as may be required by the Bidding Procedures Order; and
(iii) Buyer shall pay or be responsible for all Cure Costs and Expenses and pay and perform the execution other obligations of Buyer set forth in this Agreement.
(f) Except as otherwise set forth in this Article V, each Person shall bear their own costs and expenses in respect of obtaining entry of the Approval Order and otherwise implementing the sale, transfer, assignment, conveyance and delivery of the transfer documentation in form applicable Lease and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable related assets to the applicable title company for Assignee, including the delivery to Lender filing and prosecution of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation any motions or other papers with respect to such Transferthe same.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Assumption. Borrowers From and after the four (4) month anniversary of the Closing Date, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the “Transferee”) and such Transferee may assume the Loanan "Assumption"), provided no Event of Default exists or monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% an assumption agreement (including an assumption of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identityMortgage in recordable form, experienceif requested by Lender), financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article 4 (REPRESENTATIONS AND WARRANTIES) (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such assumption), and such other representations (and evidence of the accuracy of such representations) as Lender shall reasonably request;
(fii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iii) a Person satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender (and upon such assumption by such Person, Sponsor and any other such guarantor shall be released from such obligations, liabilities, guarantees and indemnities);
(iv) such Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date, including, to the extent necessary to satisfy a Rating Condition, nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Successor Borrower shall have delivered such other documents, certificates and legal opinions, including relating to REMIC matters, as Lender shall reasonably request;
(v) such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Successor Borrower and the due authorization of the Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vi) the Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Property to the Successor Borrower;
(vii) the Rating Condition shall have been satisfied with respect to the legal structure of the Successor Borrower, the documentation of the Assumption and the related legal opinions; and
(viii) Borrower pays all shall have paid to Lender a nonrefundable assumption fee in an amount equal to 0.5% of the Principal outstanding under the Loan, and Borrower shall have reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transferassumption.
Appears in 2 contracts
Sources: Loan Agreement (Inland Real Estate Income Trust, Inc.), Loan Agreement (Inland Real Estate Income Trust, Inc.)
Assumption. Borrowers If a Third Party Claim is made against Purchaser, Seller shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by Seller; provided, however, that such counsel is not reasonably objected to by Purchaser. Should Seller so elect to assume the defense of a Third Party Claim, Seller shall not be liable to Purchaser for any legal expenses subsequently incurred by Purchaser in connection with the defense thereof. If Seller assumes such defense, Purchaser shall have the right at any time to Transfer all of the Individual Properties in one transaction to another party (the “Transferee”) and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are met:
(a) Borrowers shall pay to Lender a transfer fee participate in the amount defense thereof and to employ counsel (not reasonably objected to by Seller), at its own expense, separate from the counsel employed by Seller, it being understood that Seller shall control such defense. Seller shall be liable for the reasonable fees and expenses of 0.5% of counsel employed by Purchaser for any period during which Seller has not assumed the sum of defense thereof. If Seller chooses to defend or prosecute a Third Party Claim, Purchaser shall cooperate in the Principal Indebtedness defense or prosecution thereof. Such cooperation shall include the retention and Unfunded Future Advances;
(bupon Seller's request) the identity, experience, financial condition, creditworthiness, single purpose nature provision to Seller of records and bankruptcy remoteness of the Transfereeinformation that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not Seller assumes the replacement guarantors defense of a Third Party Claim, Purchaser shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without Seller's prior written consent (which consent shall not be unreasonably withheld). If Seller assumes the defense of a Third Party Claim, Purchaser shall agree to any settlement, compromise or discharge of a Third Party Claim that Seller may recommend and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required that by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender its terms releases Purchaser completely in connection with such TransferThird Party Claim and that would not be likely to set a precedential custom or practice adverse to the continuing business interest of Purchaser. Notwithstanding the foregoing, including Lender’s Seller shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable attorneys fees and expensesexpenses of counsel incurred by Purchaser in defending such Third Party Claim) if the Third Party Claim seeks an order, all recording feesinjunction or other equitable relief or relief for other than money damages against Purchaser that Purchaser reasonably determines, and all fees payable to the applicable title company after conferring with its outside counsel, cannot be separated from any related claim for the delivery to Lender money damages. If such equitable relief or other relief portion of the endorsement referred Third Party Claim can be so separated from that for money damages, Seller shall be entitled to in clause (e) above;
(g) assume the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect defense of the portion relating to such Transfermoney damages.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Dynamics Research Corp), Technology Transfer Agreement (Dynamics Research Corp)
Assumption. Borrowers (a) In the event Mortgage Borrower obtains the consent of Mortgage Lender to a Transfer of the Property subject to, and assuming, the Mortgage Loan Documents to another Person (a "TRANSFEREE MORTGAGE BORROWER"), such Transfer shall have nevertheless not be permitted hereunder unless (1) the right at any time sole holder of 100% of the equity interests in the Transferee Mortgage Borrower (the "TRANSFEREE MEZZANINE BORROWER") pledges its entire equity interest in the Transferee Mortgage Borrower to Transfer Lender pursuant to a pledge agreement in the form of the Pledge Agreement or otherwise acceptable to Lender in its sole discretion, (2) the Transferee Mezzanine Borrower is substituted for and assumes all of Borrower's obligations under the Loan Documents, and replacement guarantors and indemnitors assume all of the Individual Properties obligations of Borrower Principal under the Loan Documents (collectively, a "TRANSFER AND ASSUMPTION"), and (3) Lender approves such Transfer and Assumption (including without limitation the creditworthiness of the proposed "Transferee Mezzanine Borrower") in one transaction Lender's reasonable discretion. Borrower may make a written application to another party Lender for Lender's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (the “Transferee”i) and (ii) of this Section below. Together with such Transferee may assume the Loanwritten application, provided no Event of Default exists or would result therefrom and the following conditions are met:
(a) Borrowers shall Borrower will pay to Lender a transfer fee in the amount of 0.5% reasonable review fee, not to exceed $25,000, then required by Lender. Borrower also shall pay on demand all of the sum costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and including the fees and expenses of Rating Agencies, if applicable, and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the Principal Indebtedness and Unfunded Future Advances;same is permitted or occurs.
(b) the identityLender may grant or withhold its consent to a Transfer and Assumption in its reasonable discretion, experiencesubject, financial conditionhowever, creditworthiness, single purpose nature and bankruptcy remoteness to satisfaction of the Transfereefollowing conditions:
(i) No Default or Event of Default shall have occurred and be continuing;
(ii) Borrower shall have submitted to Lender true, correct and complete copies of any and all information and documents of any kind reasonably requested by Lender concerning the Property, Transferee Mezzanine Borrower, replacement guarantors and indemnitors;
(iii) Evidence satisfactory to Lender shall have been provided showing that the Transferee Mezzanine Borrower and such of its Affiliates as shall be designated by Lender comply and will comply with Article 6, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Mezzanine Borrower and its Affiliates;
(iv) Borrower shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Transfer and Assumption and all related transactions;
(v) Borrower shall have paid all of Lender's costs and expenses in connection with considering the Transfer and Assumption, and shall have paid the amount requested by Lender as a deposit against Lender's costs and expenses in connection with effecting the Transfer and Assumption;
(vi) Borrower, the Transferee Mezzanine Borrower, and the replacement guarantors and indemnitors shall be have indicated in writing in form and substance reasonably satisfactory to Lender;Lender their readiness and ability to satisfy the conditions set forth in Subsection (c) below; and
(vii) The identity, experience, and financial condition of the Transferee Mezzanine Borrower and the replacement guarantors and indemnitors shall be satisfactory to Lender in its sole and absolute discretion, exercised in good faith.
(c) BorrowersIf Lender consents to the Transfer and Assumption, Transfereethe Transferee Mezzanine Borrower and/or Borrower, Guarantor as the case may be, shall deliver the following to Lender:
(i) Borrower (or Transferee Mezzanine Borrower) shall deliver to Lender an assumption fee in the amount of 1.0% of the then unpaid principal balance of the Loan at the closing of the Transfer and Assumption;
(ii) Borrower, Transferee Mezzanine Borrower, the original and replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be documents reasonably required by Lender or required by the Rating Agencies, as the case may beLender, in form and substance reasonably satisfactory required by Lender, to evidence the Transfer and Assumption, including Loan Document modifications reasonably appropriate in light of such Transfer and Assumption (modifying documentation if Lender requires to address variations in the ownership structure of the Transferee Mezzanine Borrower from that of the Borrower, for example, so long as such modifications do not alter the economics of the Loan or satisfactory to materially increase the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documentsBorrower's obligations thereunder);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transfer.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Maguire Properties Inc), Mezzanine Loan Agreement (Maguire Properties Inc)
Assumption. Borrowers Notwithstanding the foregoing provisions of this Paragraph 15, a sale of the Property and assumption of this Loan (hereinafter, an “Assumption”) in its entirety prohibited by the foregoing may be permitted no more than once during the term of the Note to any person or entity, subject to Beneficiary’s prior written consent, which shall not be unreasonably withheld or delayed, provided that each of the following terms and conditions are satisfied:
(i) no default has occurred and is then continuing hereunder or under any of the Loan Documents;
(ii) Grantor gives Beneficiary written notice of the terms of such prospective Assumption not less than sixty (60) days before the date on which such Assumption is scheduled to take place and, concurrently therewith, gives Beneficiary all such information concerning the proposed transferee of the Loan (hereinafter, a “Transferee”) as Beneficiary would reasonably require in evaluating an initial extension of credit to a borrower on a non-recourse basis. Beneficiary shall have the right at any time to Transfer all approve or disapprove the proposed Transferee. In determining whether to give or withhold its approval of the Individual Properties proposed Transferee, Beneficiary shall consider the Transferee’s experience in one transaction owning and operating a facility similar to another party (the “Property, the Transferee”) and such Transferee may assume ’s entity structure, the LoanTransferee’s financial strength, provided no Event of Default exists or would result therefrom the Transferee’s general business standing and the following Transferee’s relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that notwithstanding Beneficiary’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based upon what Beneficiary determines to be commercially reasonable in Beneficiary’s sole discretion and, if given, may be given subject to such conditions are met:as Beneficiary may deem appropriate, but no such conditions shall result in an increase in the interest rate or monthly payment under the Note or reduce the term thereof;
(aiii) Borrowers Grantor shall pay to Lender Beneficiary (A) in connection with such proposed Assumption, all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees incurred by Beneficiary, plus (B) concurrently with the closing of such Assumption, a transfer nonrefundable assumption fee in the an amount of 0.5equal to 1% of the sum then outstanding principal balance of the Principal Indebtedness and Unfunded Future AdvancesNote at the time of such Assumption;
(biv) the identityTransferee assumes and agrees to pay the Indebtedness and perform the Obligations secured hereby subject to Paragraph 11 of the Note, experienceand prior to or concurrently with the closing of such Assumption, financial conditionthe Transferee executes, creditworthinesswithout any cost or expense to Beneficiary, single purpose nature such documents and bankruptcy remoteness agreements as Beneficiary shall reasonably require to evidence and effectuate said assumption and deliver such legal opinions as Beneficiary may reasonably require;
(v) Transferee executes, without any cost or expense to Beneficiary, new financing statements or financing statement amendments and any additional documents reasonably requested by Beneficiary;
(vi) Grantor delivers to Beneficiary, without any cost or expense to Beneficiary, hazard insurance endorsements or certificates and other similar materials as Beneficiary may deem necessary at the time of the Assumption, all in form and substance satisfactory to Beneficiary, including without limitation, an endorsement or endorsements to Beneficiary’s loan title insurance policy insuring the lien of this Deed of Trust, extending the effective date of such policy to the date of execution and delivery of the assumption agreement referenced above in subparagraph 15(c)(iv), with no additional exceptions added to such policy, except for items consented to by Beneficiary or permitted under this Deed of Trust, and insuring that fee simple title to the Property is vested in the Transferee;
(vii) Grantor executes and delivers to Beneficiary without any cost or expense to Beneficiary, a release of Beneficiary, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the other security documents through and including the date of the closing of the Assumption, which agreement shall be in form and substance satisfactory to Beneficiary and shall be binding upon the Transferee;
(viii) subject to the provisions of Paragraph 11 of the Note, such Assumption is not construed so as to relieve Grantor of any personal liability under the Note or any of the Loan Documents for any act or events occurring or obligations arising prior to or simultaneously with the closing of such Assumption (excluding payment of the principal amount of the Note and interest accrued thereon) and Grantor executes, without any cost or expense to Beneficiary, such documents and agreements as Beneficiary shall reasonably require to evidence and effectuate the ratification of such personal liability;
(ix) such Assumption is not construed as to relieve any current Guarantors or Indemnitors (as defined in the Loan Documents) of their obligations under any guarantees or indemnity agreements executed in connection with the Note, and each such current Guarantors or Indemnitors execute, without any cost or expense to Beneficiary, such documents and agreements as Beneficiary shall reasonably require to evidence and effectuate the ratification of each such guarantee and indemnity agreement, provided that if the Transferee or a party associated with the Transferee approved by the Beneficiary in its sole discretion assumes the obligations of the current Guarantors and Indemnitors under their guarantees or indemnity agreements and the Transferee or such party associated with the Transferee if applicable, executes, without any cost or expense to Beneficiary, a new guarantee and/or indemnity agreement in form and substance satisfactory to Beneficiary, then Beneficiary shall release the current Guarantors or Indemnitors from all obligations first arising under their guarantees or indemnity agreements after the closing of such Assumption;
(x) The Transferee shall furnish, if the Transferee is a corporation, partnership or other entity, all appropriate papers evidencing the Transferee’s capacity in good standing and the qualification of the signers to execute the assumption of the Obligations, which paper shall include certified copies of all documents relating to the organization and formation of the Transferee and of the entities, if any, which are partners, members or shareholders of the Transferee. The Transferee and such constituent partners, and members or shareholders of the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
Transferee (c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be) as Beneficiary shall require, in form shall be single purpose, bankruptcy remote entities, whose formation documents shall be approved by counsel to Beneficiary. An individual recommended by Transferee and substance reasonably satisfactory to Lender or satisfactory to approved by Beneficiary shall serve as an independent director of the Rating Agencies, as Transferee (if the case may be, in Lender’s reasonable discretion Transferee is a corporation) or the Rating Agencies’ Transferee’s corporate general partner or an independent member or in Beneficiary’s discretion, as applicable (including assumption documents)manager of Transferee, if the Transferee is a limited liability company. The consent of such independent parties shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Transferee;
(dxi) counsel to the Transferee and shall assume the replacement guarantors and indemnitors shall deliver to Lender and obligations of Grantor under the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory management agreements, if any, pertaining to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptionsProperty;
(exii) if the Individual Property is transferredTransferee shall furnish an opinion of counsel satisfactory to Beneficiary and its counsel stating that (A) the Transferee’s formation documents provide proof for the matters described in subparagraph (x) above, Borrower shall deliver (B) the assets of the Grantor will not be consolidated with the assets of any other entity having an interest in, or cause to be delivered) to Lenderaffiliation with, an endorsement to Lender’s title insurance policy relating to the change Transferee, in the identity event of a bankruptcy or insolvency of any such entity (C) the assumption of the vestee Obligations has been duly authorized, executed and delivered and the execution Loan Documents are valid, binding and delivery enforceable against the Transferee in accordance with their terms, (D) the Transferee and any entity which is a controlling stockholder, general partner or managing member of the transfer documentation Transferee have been duly organized and are in form good standing and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording feesexistence, and all fees payable (E) with respect to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%such other matters as Beneficiary may request; and
(hxiii) Lender if the Loan has previously been securitized pursuant to Paragraph 44 Beneficiary shall have received evidence in writing from the rating agencies to the effect the proposed transfer will not result in a Rating Agency Confirmation downgrade, qualification reduction or withdrawal or any rating initially assigned or to be assigned in a Secondary Market Transaction. For purposes hereof, a “Secondary Market Transaction” shall be (i) any sale of the Deed of Trust, Note and Loan Documents to one or more investors as a whole loan; (ii) a participation of the Note to one or more investors; (iii) any deposit of this Deed of Trust, Note and Loan Documents with respect a trust or other entity which may sell certificates or other instruments to investors evidencing an ownership interest in the assets of such Transfertrust or other entity, or (iv) any other sale or transfer of the Note or any interest therein to one or more investors.
Appears in 2 contracts
Sources: Deed of Trust, Security Agreement and Fixture Filing, Deed of Trust, Security Agreement and Fixture Filing (KBS Strategic Opportunity REIT, Inc.)
Assumption. Borrowers Issuer shall have assume, pay, and discharge, insofar as allocable to the right at Wellbore Interests and only to the extent not constituting Retained Liabilities, subject to Seller's indemnity obligations under Section 5.02 and obligations with respect to title matters pursuant to Section 5.11 (subject to the limitations and restrictions in ARTICLE 5), any time to Transfer and all of the Individual Properties in one transaction to another party following Liabilities, Damages and obligations (collectively, the “Transferee”) and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are met:"Assumed Liabilities"):
(a) Borrowers shall pay to Lender a transfer fee in the amount of 0.5% extent allocable to the Wellbore Interests, all Liabilities, Damages, and obligations incurred during or otherwise attributable to the period from and after the Closing Date and that are related or attributable to the operation or ownership of the sum ▇▇▇▇▇, Wellbore Lease Rights, Unit Rights, Well Facilities (excluding, with respect to the Gathering Facilities, that portion of the Principal Indebtedness foregoing to the extent allocable to the Retained Gathering Facilities), and Unfunded Future AdvancesApplicable Contracts, including: (i) any Environmental Liability or Environmental Defect attributable to the operation or ownership of any Well or Well Facility (excluding, with respect to the Gathering Facilities, that portion of the foregoing to the extent allocable to the Retained Gathering Facilities) during the period from and after the Closing Date; (ii) Liabilities for personal injuries or death, property damage, torts, breach of contract or violation of any Legal Requirement or Governmental Authorization attributable to the operation or ownership of any Well or Well Facility (excluding, with respect to the Gathering Facilities, that portion of the foregoing to the extent allocable to the Retained Gathering Facilities) during the period from and after the Closing Date; (iii) any Liabilities for disposal of any Hazardous Substances offsite of the Leases or any lands pooled therewith that occurred or was conducted from and after the Closing Date and associated with the operation or ownership of any Well or Well Facility (excluding, with respect to the Gathering Facilities, that portion of the foregoing to the extent allocable to the Retained Gathering Facilities); (iv) costs and expenses allocable to the Working Interests to the extent incurred during or attributable to the period from and after the Closing Date; and (v) Liabilities for Burdens allocable to the Working Interests to the extent attributable to production from the ▇▇▇▇▇ during the period from and after the Closing Date;
(bi) Property Costs to the identity, experience, financial condition, creditworthiness, single purpose nature extent attributable to the period from the Effective Time until the Closing Date and bankruptcy remoteness incurred in the ordinary course and not as a result of any failure by Seller or its Affiliates to comply with the Transferee, standards set forth in applicable operating agreements; and (ii) Liabilities for Burdens allocable to the replacement guarantors and indemnitors shall be reasonably satisfactory Wellbore Interests to Lenderthe extent attributable to production from the ▇▇▇▇▇ during the period from the Effective Time until the Closing Date;
(c) Borrowers, Transferee, Guarantor the Plugging and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents)Abandonment Obligations;
(d) counsel all Asset Taxes allocated to Transferee and the replacement guarantors and indemnitors shall deliver Issuer pursuant to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;Section 2.07(b); and
(e) if the Individual Property is transferredall Liabilities, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording feesDamages, and all fees payable to obligations under the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such TransferAssumed Hedge Contracts.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Alpine Summit Energy Partners, Inc.), Asset Purchase Agreement (Alpine Summit Energy Partners, Inc.)
Assumption. Borrowers shall have Lender’s consent to the right at any time to Transfer all sale or transfer of the Individual Properties in one transaction to another party (the “Transferee”) and such Transferee may assume the LoanProperty will not be unreasonably withheld after consideration of all relevant factors, provided no Event of Default exists or would result therefrom and the following conditions are metthat:
(a) Borrowers shall pay Borrower delivers to Lender a transfer fee in the amount of 0.5% no less than 60 days’ prior written notice of the sum of the Principal Indebtedness and Unfunded Future Advancesproposed sale or transfer;
(b) the identity, experience, financial condition, creditworthiness, single purpose nature no Event of Default has occurred and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lenderremains uncured;
(c) Borrowers, Transferee, Guarantor Transferee and the replacement guarantors proposed guarantor(s), if any, and indemnitors the Property all satisfy Lender’s then applicable credit review and underwriting standards, taking into consideration, among other things, that Transferee and the proposed guarantor(s) shall execute be reputable Persons of good character, creditworthy, with sufficient financial worth considering the obligations assumed and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agenciesundertaken, as the case may beevidenced by financial statements and other information reasonably requested by Lender, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Transferee shall satisfy Lender’s reasonable discretion or the Rating Agencies’ discretion, as then applicable (including assumption documents)criteria for a single purpose entity;
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion determination that Transferee possesses satisfactory recent experience in the ownership and operation of properties similar to the Rating Agencies’ discretion with customary qualifications and assumptionsProperty;
(e) if the Individual Property is transferred, Borrower Transferee shall deliver (or cause have executed and delivered to be delivered) to Lender, Lender an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation assumption agreement in form and substance reasonably acceptable to Lender, evidencing such Transferee’s agreement to abide and be bound by the terms of the Note, this Security Instrument and the other Loan Documents, and a consent to the sale or transfer by each existing guarantor(s) and a reaffirmation of each guarantor’s obligations and liabilities under the Loan Documents or the execution of new guaranties by new guarantors reasonably satisfactory to Lender, together with such legal opinions and title insurance endorsements as may be reasonably requested by Lender;
(f) Borrower pays Lender shall have received an assumption fee equal to one-third of one percent (.33%) of the then unpaid principal balance of the Note in addition to the payment of all reasonable costs and expenses incurred by Lender in connection with such Transfer, assumption (including Lender’s reasonable attorneys attorneys’ fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;costs); and
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) if required by Lender, Lender shall have received confirmation in writing from the Rating Agencies to the effect that such transfer will not result in a Rating Agency Confirmation qualification, downgrade or withdrawal of any rating initially assigned or to be assigned in a Secondary Market Transaction. Subject to Section 9 of the Note, Lender shall fully release Borrower and each existing guarantor from any further obligation or liability to Lender under the Note and the other Loan Documents upon the assumption by Transferee and each new guarantor of all such obligations and liabilities and the satisfaction of all other conditions precedent to a sale or transfer in accordance with respect to such Transferthe provisions of this Section.
Appears in 1 contract
Assumption. Borrowers Joining Guarantor hereby unconditionally, jointly and severally, assumes liability for all Guarantees, covenants, warranties, representations, indemnifications, obligations and other Debt of Guarantors now existing or which may hereafter arise under the Guaranty and shall be liable therefor as though Joining Guarantor had originally been a party to the Guaranty. Without limitation of the foregoing, Joining Guarantor, as a primary obligor and not as a surety, unconditionally, jointly and severally, guarantees unto the 2006 Noteholders the payment of the Debt when due (whether at the stated maturity, by acceleration or otherwise) in accordance with the terms of the Note Documents. Notwithstanding the foregoing and the other provisions of this Joinder Agreement, to the extent that in a legal proceeding brought within the applicable limitations period it is determined by the final, non-appealable order of a court having jurisdiction over the issue and the applicable parties that Joining Guarantor received less than a reasonably equivalent value in exchange for such Joining Guarantor's incurrence of its obligations under the Guaranty, then and only then the liability of Joining Guarantor under the Guaranty shall be limited to the Guaranteed Debt applicable to such Joining Guarantor. The 2006 Noteholders shall have the right at any to determine and designate from time to Transfer all time, without notice or assent of Joining Guarantor, which portions of the Individual Properties in one transaction to another party (the “Transferee”) and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are met:
(a) Borrowers Debt shall pay to Lender a transfer fee be deemed included in the amount of 0.5% of the sum of the Principal Indebtedness Guaranteed Debt. Joining Guarantor acknowledges that such determination and Unfunded Future Advances;
(b) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors designation shall be reasonably satisfactory conclusive, absent manifest error. The Guaranty shall not fail or be ineffective or invalid or be considered too indefinite or contingent with respect to Lender;
Joining Guarantor because the Guaranteed Debt applicable to Joining Guarantor may fluctuate from time to time or for any other reason. Any payment or prepayment by Company or any other Person against the Debt (c) Borrowers, Transferee, other than payments made by a Guarantor and in accordance with the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change procedures described in the identity definition of "Guaranteed Debt" in the vestee Guaranty and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation then only with respect to such TransferGuarantor's liability hereunder) shall be deemed paid first against that portion of the Debt not included in "Guaranteed Debt" or determined for any reason not to be a part of "Guaranteed Debt," and then shall be paid against any portion of the Debt that is Guaranteed Debt, in such order and manner as the 2006 Noteholders shall determine in their sole discretion.
Appears in 1 contract
Assumption. Borrowers shall have (a) New Borrower hereby (i) assumes and agrees to pay all Indebtedness in accordance with the right at any time terms of the Loan Documents, and (ii) agrees to Transfer perform all of the Individual Properties in one transaction other obligations of Original Borrower under the Loan Documents and to another party (be bound by, comply with and perform each and every other covenant, condition, agreement, representation, warranty, waiver, consent, acknowledgment and obligation of Original Borrower under the Loan Documents with the same force and effect as if New Borrower itself had executed and delivered the Loan Documents to which Original Borrower is a party. New Borrower shall henceforth be deemed to be “Transferee”) Borrower” under the Loan Documents. The foregoing assumption by New Borrower is absolute, irrevocable and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are met:
(a) Borrowers shall pay to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;unconditional.
(b) In connection with the identityAssumption, experienceNew Borrower (and, financial conditionwith respect to the Mortgage Assumption and Amended Subordination Agreement, creditworthinessOperating Lessee) has executed and delivered the following documents for the benefit of Lender, single purpose nature and bankruptcy remoteness each dated as of the Transfereedate hereof:
(1) that certain Second Amended and Restated Promissory Note (the “New Note”), which New Note shall be deemed to be the “Note” under the Loan Documents;
(2) that certain Assumption of Deed of Trust, Assignment of Rents and Leases, Collateral Assignment of Property Agreements, Security Agreement and Fixture Filing (the “Mortgage Assumption”; the “Mortgage” under the Loan Documents shall hereafter mean the Mortgage as assumed pursuant to the Mortgage Assumption);
(3) that certain Collateral Assignment of Interest Rate Cap Agreement (the “Amended Assignment of Interest Rate Cap”), which Amended Assignment of Interest Rate Cap shall be deemed to be the “Assignment of Interest Rate Cap Agreement” under the Loan Documents; and
(4) that certain Second Amended and Restated Subordination, Non-Disturbance and Attornment Agreement (the “Amended Subordination Agreement”), which Amended Subordination Agreement shall be deemed to be the “Nondisturbance Agreement” under the Loan Documents. The New Note, the Mortgage Assumption, the Amended Assignment of Interest Rate Cap, the Amended Subordination Agreement, this Agreement, and all other agreements, instruments, certificates and documents executed by Borrower, Operating Lessee and/or Sponsor for the replacement guarantors benefit of Lender in connection with the Assumption and indemnitors REIT Restructuring are each an “Assumption Document” and, collectively, the “Assumption Documents”. The Assumption Documents shall each be reasonably satisfactory deemed to Lender;be a “Loan Document” for all purposes under the Loan Documents.
(c) BorrowersThe parties acknowledge and agree that Lender shall continue to hold the balances in the Collateral Accounts, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may beif any, in form accordance with the terms of the Loan Documents. Original Borrower hereby assigns, transfers and substance reasonably satisfactory conveys such balances to (i) New Borrower, with respect to all balances in the Cash Management Account, and (ii) to Operating Lessee, with respect to all balances other than the balances in the Cash Management Account. New Borrower and Operating Lessee hereby pledge the Account Collateral to Lender or satisfactory as security for the Indebtedness, together with all rights of a secured party with respect thereto, it being the intention of the parties that such pledge shall be a perfected first-priority security interest. All Collateral Accounts shall continue to be under the sole dominion and control of Lender pursuant to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);Loan Documents.
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity For purposes of the vestee assumption and the execution other transactions contemplated herein, Lender acknowledges and agrees that, subject to Section 4(c), it has waived delivery of the transfer documentation in form authority to file and substance reasonably acceptable to Lender;
(f) single-member Delaware law opinions for New Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such TransferOperating Lessee.
Appears in 1 contract
Sources: Assumption, Joinder and Amendment Agreement (Aspen REIT, Inc.)
Assumption. Borrowers The initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will assume all of the obligations of Borrower hereunder (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists or material monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Qualified Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identityan assumption agreement, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV, and such other representations (and evidence of the accuracy of such representations) as the Servicer shall reasonably request;
(fii) such Qualified Successor Borrower shall deliver such Uniform Commercial Code financing statements as may be reasonably requested by Lender;
(iii) a party satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender;
(iv) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender which are equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions which are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Qualified Successor Borrower shall have delivered such other documents, certificates and legal opinions as Lender shall reasonably request;
(v) such Qualified Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Borrower and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section 2.2, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register; G▇▇▇▇▇▇ S▇▇▇▇ Commercial Mortgage Capital, L.P. Loan Agreement Life Time Fitness Portfolio
(vi) the Qualified Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Properties to the Qualified Successor Borrower;
(vii) Rating Confirmation shall have been received with respect to the legal structure of the successor borrower, the documentation of the Assumption and the related legal opinions; and
(viii) Borrower pays all shall have paid to Lender a nonrefundable assumption fee in an amount equal to 1% of the Loan Amount, provided that such nonrefundable assumption fee shall be an amount equal to 0.5% of the Loan Amount for the first such Assumption, and Borrower shall have reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transferassumption.
Appears in 1 contract
Assumption. Borrowers At any time after the first anniversary of the Closing Date, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the “Transferee”) and such Transferee may assume the Loanan "Assumption"), provided no Event of Default exists or material monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Qualified Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% an assumption agreement (including an assumption of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identitySecurity Instrument in recordable form, experienceif requested by Lender), financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such assumption), and such other representations (and evidence of the accuracy of such representations) as the Servicer shall reasonably request;
(fii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iii) a party satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender (and upon such assumption by such party, Sponsor and any other such guarantor shall be released from such obligations, liabilities, guarantees and indemnities);
(iv) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Qualified Successor Borrower shall have delivered such other documents, certificates and legal opinions as Lender shall reasonably request;
(v) such Qualified Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Borrower and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section 2.2, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vi) the Qualified Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Property to the Qualified Successor Borrower;
(vii) after giving effect to the Assumption, the Property shall continue to be managed by an Approved Property Manager;
(viii) the Rating Condition shall have been satisfied with respect to the legal structure of the successor borrower, the documentation of the Assumption and the related legal opinions; and
(ix) Borrower pays all shall have paid to Lender a nonrefundable assumption fee in an amount equal to one percent (1.0%) of the Principal Indebtedness, and Borrower shall have reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such TransferAssumption.
Appears in 1 contract
Assumption. Borrowers From and after the first (1st) anniversary of the Closing Date, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the “Transferee”) and such Transferee may assume the Loanan "Assumption"), provided no Event of Default exists or monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% an assumption agreement (including an assumption of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identitySecurity Instrument in recordable form, experienceif requested by Lender), financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such Assumption), and such other representations (and evidence of the accuracy of such representations) as Lender shall reasonably request;
(fii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iii) (a) a Qualified Equityholder, or (b) a Person satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender (and upon such Assumption by such Person, Sponsor and any other such guarantor shall be released from such obligations, liabilities, guarantees and indemnities);
(iv) such Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date, including new non-consolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Successor Borrower shall have delivered such other documents, certificates and legal opinions, including relating to REMIC matters, as Lender shall reasonably request;
(v) such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Successor Borrower 49125-481/Block 21 (TX) and the due authorization of the Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vi) the Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Property to the Successor Borrower;
(vii) such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the assignment of the Approved Property Management Agreement and a current SNDA from the Approved Hotel Operator with respect to the Approved Hotel Operating Agreement for the benefit of Lender;
(viii) the Rating Condition shall have been satisfied with respect to the legal structure of the Successor Borrower, the documentation of the Assumption and the related legal opinions;
(ix) Borrower pays all shall have paid to Lender a nonrefundable assumption fee in an amount equal to (A) 0.5% of the Principal Indebtedness for the first Assumption, and (B) 1.0% of the Principal Indebtedness for each subsequent Assumption, and Borrower shall have reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%Assumption; and
(hx) Lender unless any Approved Music Venue Lease shall have received been terminated pursuant to Section 5.24(c), (a) the obligations of each Approved Music Venue Manager under its Approved Music Venue Lease and the Loan Documents to which it is a Rating Agency Confirmation party shall have been assumed by a replacement Approved Music Venue Manager pursuant to an assumption agreement, in form and substance reasonably acceptable to Lender (and upon such assumption and the satisfaction of the other conditions set forth in this Article II, such Approved Music Venue Manager shall be released from such all obligations, liabilities, guarantees and indemnities under the Loan Documents), or (b) such replacement Approved Music Venue Manager enters into a replacement Approved Music Venue Lease acceptable to Lender, and in each case such replacement Approved Music Venue Manager shall have delivered to Lender all documents reasonably requested by Lender relating to the existence of such Approved Music Venue Manager and the due authorization of such Approved Music Venue Lease to assume the obligations thereunder and the Loan Documents to which it is a party, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the replacement Approved Music Venue Manager, together with respect all amendments thereto, and certificates of good standing or existence for such Approved Music Venue Manager issued as of a recent date by its state of organization and 49125-481/Block 21 (TX) each other state where such Person, by the nature of its business, is required to such Transferqualify or register.
Appears in 1 contract
Assumption. Borrowers Subject to the advance written consent of the Administrative Agent in its sole discretion (which consent shall have be granted or withheld at the right at any time to written direction of the Required Lenders necessary for a Unanimous Action), the initial Borrower may contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will assume all of the obligations of Borrower hereunder (an “Assumption”). In the “Transferee”) and event Administrative Agent shall grant its consent to an Assumption, such Transferee may assume the Loan, provided consent shall be conditioned on there being no Event of Default exists then continuing (or would result therefrom resulting from such Assumption) and the satisfaction by Borrower of the following conditions are metto the reasonable satisfaction of Required Lenders:
(ai) Borrowers shall pay to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Qualified Successor Borrower shall deliver (or cause have executed and delivered to be delivered) to LenderAdministrative Agent an assumption agreement, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to LenderAdministrative Agent, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV, and such other representations (and evidence of the accuracy of such representations) as Administrative Agent shall reasonably request;
(fii) the obligations of each Lessee Borrower pays under their respective Operating Leases shall have been assumed by a Qualified Successor Lessee Borrower pursuant to an assumption agreement, in form and substance reasonably acceptable to Administrative Agent, and such Qualified Successor Lessee Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Lessee Borrower and the due authorization of such Qualified Successor Lessee Borrower to assume the obligations under the relevant Operating Lease, each in form and substance reasonably acceptable to Administrative Agent, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Lessee Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Lessee Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(iii) such Qualified Successor Borrower shall execute and deliver such Uniform Commercial Code financing statements as may be reasonably requested by the Administrative Agent;
(iv) either (A) such Qualified Successor Borrower shall deliver to Administrative Agent a new environmental indemnity and guaranty of recourse carveouts, in each case, in form and substance reasonably acceptable to Administrative Agent, with respect to each Property, and executed by a substitute indemnitor satisfactory to Required Lenders, which in each case cover indemnified matters first occurring after the date of the Assumption, in which event Sponsor shall have no liability for indemnified matters first occurring after the date of such Assumption or (B) Sponsor shall agree to continue to be obligated under the Environmental Indemnity and Recourse Guaranty and shall execute and deliver such documents as Administrative Agent shall require to confirm and evidence the same;
(v) such Qualified Successor Borrower shall have delivered to Administrative Agent legal opinions of counsel reasonably acceptable to Administrative Agent which are reasonably equivalent to the opinions delivered to Initial Lender on the date hereof; and Borrower and the Qualified Successor Borrower shall have delivered such other documents and certificates as Administrative Agent shall reasonably request;
(vi) such Qualified Successor Borrower shall have delivered to Administrative Agent all documents reasonably requested by it relating to the existence of such Qualified Successor Borrower and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section 2.6, each in form and substance reasonably acceptable to Administrative Agent, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vii) the Qualified Title Insurance Policies shall have been properly endorsed to reflect the Transfer of the Properties to the Qualified Successor Borrower;
(viii) such Qualified Successor Borrower shall have delivered to Administrative Agent evidence reasonably acceptable to Administrative Agent of any required approval or consent of any Governmental Authority, including the Gaming Authorities, that has direct or indirect authority or oversight over Borrower, the Properties, Lessee Borrower or the operations conducted at the Properties to the change in ownership and/or operator of the Properties (or any part thereof);
(ix) after a Securitization, Rating Confirmation shall have been received with respect to the legal structure of the Qualified Successor Borrower, the documentation of the Assumption and the related legal opinions; and
(x) the Administrative Agent shall have received on behalf of Lender a nonrefundable assumption fee equal to 1% of the Principal Indebtedness and shall have received payment of all reasonable out-of-pocket costs and expenses incurred by Lender Lender, Collateral Agent and Administrative Agent, as applicable, in connection with such Transferassumption (including reasonable attorneys’ fees and costs, including Lender’s reasonable attorneys the cost of an endorsement to the Title Insurance Policy reflecting the conveyance of the Properties to the Qualified Successor Borrower, lien search and credit investigation expenses and rating agency fees and expenses). Upon an Assumption by a Qualified Successor Borrower in accordance with this Section 2.6, the initial Borrower shall be replaced by such Qualified Successor Borrower as “Borrower” for all recording fees, purposes under this Agreement and all fees payable other Loan Documents and Lender shall release Borrower from any liability due to any Indebtedness arising from and after the date of such Assumption. Notwithstanding the foregoing, subject to the applicable title company for the delivery to Lender prior written consent of the endorsement referred Administrative Agent in its sole discretion (which consent shall be granted or withheld at the written direction of the Required Lenders necessary for a Unanimous Action), an Assumption may take the form of a transfer of equity interests in Borrower to a Qualified Successor Borrower, in clause (e) above;
(g) which case the Loan-to-Value Ratio foregoing requirements shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect only apply to such Transferthe extent applicable.
Appears in 1 contract
Sources: Loan Agreement (American Casino & Entertainment Properties LLC)
Assumption. Borrowers From and after the first (1st) anniversary of the Closing Date, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the “Transferee”) and such Transferee may assume the Loanan "Assumption"), provided no Event of Default exists or monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% an assumption agreement (including an assumption of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identitySecurity Instrument in recordable form, experienceif requested by Lender), financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such Assumption), and such other representations (and evidence of the accuracy of such representations) as Lender shall reasonably request;
(fii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iii) (a) a Qualified Equityholder, or (b) a Person satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender (and upon such Assumption by such Person, Sponsor and any other such guarantor shall be released from such obligations, liabilities, guarantees and indemnities);
(iv) such Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date, including new non-consolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Successor Borrower shall have delivered such other documents, certificates and legal LOAN AGREEMENT – Page 42 opinions, including relating to REMIC matters, as Lender shall reasonably request;
(v) such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Successor Borrower and the due authorization of the Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vi) the Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Property to the Successor Borrower;
(vii) such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the assignment of the Approved Property Management Agreement and a current SNDA from the Approved Hotel Operator with respect to the Approved Hotel Operating Agreement for the benefit of Lender;
(viii) the Rating Condition shall have been satisfied with respect to the legal structure of the Successor Borrower, the documentation of the Assumption and the related legal opinions;
(ix) Borrower pays all shall have paid to Lender a nonrefundable assumption fee in an amount equal to (A) 0.5% of the Principal Indebtedness for the first Assumption, and (B) 1.0% of the Principal Indebtedness for each subsequent Assumption, and Borrower shall have reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%Assumption; and
(hx) Lender unless any Approved Music Venue Lease shall have received been terminated pursuant to Section 5.24(c), (a) the obligations of each Approved Music Venue Manager under its Approved Music Venue Lease and the Loan Documents to which it is a Rating Agency Confirmation party shall have been assumed by a replacement Approved Music Venue Manager pursuant to an assumption agreement, in form and substance reasonably acceptable to Lender (and upon such assumption and the satisfaction of the other conditions set forth in this Article II, such Approved Music Venue Manager shall be released from such all obligations, liabilities, guarantees and indemnities under the Loan Documents), or (b) such replacement Approved Music Venue Manager enters into a replacement Approved Music Venue Lease acceptable to Lender, and in each case such replacement Approved Music Venue Manager shall have delivered to Lender all documents reasonably requested by Lender relating to the existence of such Approved Music Venue Manager and the due authorization of such Approved Music Venue Lease to assume the obligations thereunder and the Loan Documents to which it is a party, each in LOAN AGREEMENT – Page 43 form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the replacement Approved Music Venue Manager, together with respect all amendments thereto, and certificates of good standing or existence for such Approved Music Venue Manager issued as of a recent date by its state of organization and each other state where such Person, by the nature of its business, is required to such Transferqualify or register.
Appears in 1 contract
Assumption. Borrowers From and after the first anniversary of the Closing Date, Borrower (including any successor Borrower) shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists or monetary Default is then continuing or would result therefrom therefrom, and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers Such Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable an assumption agreement (including an assumption documentsof each Mortgage in recordable form, if requested by Lender);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;, evidencing its agreement to abide and be bound by the terms of the Loan Documents from and after the date of assumption, and containing representations substantially equivalent to those contained in Article IV (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such Assumption), together with an updated Exception Report that does not disclose exceptions that individually or in the aggregate have an Individual Material Adverse Effect. For avoidance of doubt, such assumption agreement shall not require any paydown, new or altered cash management or escrow provisions, new recourse carveouts or any other new or different loan terms, but rather shall evidence the Successor ▇▇▇▇▇▇▇▇’s assumption of the unmodified terms hereof, from and after the date of assumption, with only such changes as are reasonably requested by the Successor Borrower to reflect its organizational structure.
(fii) Such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed.
(iii) A Replacement Guarantor or other Person satisfactory to Lender in its reasonable discretion assumes all obligations, liabilities, guarantees and indemnities of Guarantor under the Guarantor Documents pursuant to documentation reasonably satisfactory to Lender or delivered to Lender fully executed replacement Guarantor Documents in substantially the same form and substance as the existing Guarantor Documents and in the case of the Guaranty, with respect to obligations first arising from and after the date of such assumption (and upon such assumption or replacement by such Person, the existing Guarantor shall be released on a forward-looking basis from such obligations, liabilities, guarantees and indemnities).
(iv) Such Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are substantially equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions that are reasonably satisfactory to Lender; and Borrower and the Successor Borrower shall have delivered such other documents, certificates and legal opinions, including relating to REMIC or grantor trust matters, as applicable, as Lender shall reasonably request.
(v) Such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Successor Borrower and the due authorization of the Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register.
(vi) The Title Insurance Policies shall have been properly endorsed or replaced to reflect the Transfer of the Properties to the Successor Borrower.
(vii) The Rating Condition shall have been satisfied.
(viii) Lender’s standard “know-your-customer” requirements shall have been satisfied with respect to any Person that Controls the Successor Borrower or that holds the KYC Threshold or more of the direct or indirect equity interests in the Successor Borrower or in any Person that Controls the Successor Borrower, provided that the foregoing shall not apply to any Public Vehicle and/or the direct and/or indirect owners thereof. Lender shall use diligent and commercially reasonable efforts to complete its “know your customer” diligence within thirty (30) days after receiving the information necessary to do so.
(ix) Borrower pays all shall have paid to Lender a non-refundable assumption fee in an amount equal to 0.5% of the Principal Indebtedness. Lender shall not be permitted to charge a fee in excess of the foregoing amount, but shall be permitted to charge a non-refundable processing fee of up to $10,000 as a condition to evaluating a proposed Assumption (which processing fee shall be credited toward the foregoing assumption fee if the Assumption occurs).
(x) Borrower shall have reimbursed Lender for its reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees out-of-pocket costs and expenses, all recording fees, and all fees payable including amounts actually owed to the applicable title company Rating Agencies (but no fee shall be charged by Lender or any Servicer except for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transferassumption fee described herein).
Appears in 1 contract
Assumption. Borrowers From and after the first anniversary of the Closing Date, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists or monetary Default is then continuing or would result therefrom therefrom, Lender consents to the Assumption in writing, and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers Such Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% an assumption agreement (including an assumption of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identityapplicable Mortgage in recordable form, experienceif requested by Lender), financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such Assumption), together with an updated Exception Schedule that does not disclose exceptions that individually or in the aggregate have a Material Adverse Effect. For avoidance of doubt, such assumption agreement shall not require any paydown, new or altered cash management or escrow provisions, new recourse carveouts or any other new or different loan terms, but rather shall evidence the Successor Borrower’s assumption of the unmodified terms hereof with only such changes as are reasonably requested by the Successor Borrower to reflect its organizational structure.
(fii) Such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed.
(iii) A Person satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender (and upon such assumption by such Person, Sponsor and any other such guarantor shall be released on a forward-looking basis from such obligations, liabilities, guarantees and indemnities).
(iv) Such Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Successor Borrower shall have delivered such other documents, certificates and legal opinions, including relating to REMIC or grantor trust matters, as applicable, as Lender shall reasonably request.
(v) Such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Successor Borrower and the due authorization of the Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all 46 [AM_ACTIVE 400655008_12]
(vi) The Title Insurance Policies shall have been properly endorsed to reflect the Transfer of the Properties to the Successor Borrower.
(vii) The Rating Condition shall have been satisfied.
(viii) Lender’s standard “know-your-customer” requirements shall have been satisfied with respect to any Person that holds 10% or more of the direct or indirect equity interests in, or Controls, the Successor Borrower. Lender shall use diligent and commercially reasonable efforts to complete its “know your customer” diligence within 30 days after receiving the information necessary to do so.
(ix) Borrower pays all shall have paid to Lender a nonrefundable assumption fee in an amount equal to 0.5% of the Principal Indebtedness. Lender shall not be permitted to charge a fee in excess of the foregoing amount, but shall be permitted to charge a non- refundable processing fee of up to $10,000 as a condition to evaluating a proposed Assumption (which processing fee shall be credited toward the foregoing assumption fee if the Assumption occurs).
(x) Borrower shall have reimbursed Lender for its reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees out-of-pocket costs and expenses, all recording fees, and all fees payable including amounts actually owed to the applicable title company Rating Agencies (but no fee shall be charged by Lender or any Servicer except for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transferassumption fee described herein).
Appears in 1 contract
Sources: Loan Agreement (Hartman Short Term Income Properties XX, Inc.)
Assumption. Borrowers (a) In the event Mortgage Borrower obtains the consent of Mortgage Lender to a Transfer of the Property subject to, and assuming, the Mortgage Loan Documents to another Person (a "TRANSFEREE MORTGAGE BORROWER"), such Transfer shall have nevertheless not be permitted hereunder unless (1) the right at any time sole holder of 100% of the equity interests in the Transferee Mortgage Borrower (the "TRANSFEREE MEZZANINE BORROWER") pledges its entire equity interest in the Transferee Mortgage Borrower to Transfer Lender pursuant to a pledge agreement in the form of the Pledge Agreement or otherwise acceptable to Lender in its sole discretion, (2) the Transferee Mezzanine Borrower is substituted for and assumes all of Borrower's obligations under the Loan Documents, and replacement guarantors and indemnitors assume all of the Individual Properties obligations of Borrower Principal under the Loan Documents (collectively, a "TRANSFER AND ASSUMPTION"), and (3) Lender approves such Transfer and Assumption (including without limitation the creditworthiness of the proposed "Transferee Mezzanine Borrower") in one transaction Lender's reasonable discretion. Borrower may make a written application to another party Lender for Lender's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (the “Transferee”b) and (c) of this Section below. Together with such Transferee may assume the Loanwritten application, provided no Event of Default exists or would result therefrom and the following conditions are met:
(a) Borrowers shall Borrower will pay to Lender a transfer fee in the amount of 0.5% reasonable review fee, not to exceed $25,000, then required by Lender. Borrower also shall pay on demand all of the sum costs and expenses incurred by Lender, including reasonable attorneys' fees and expenses, and including the fees and expenses of Rating Agencies, if applicable, and other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the Principal Indebtedness and Unfunded Future Advances;same is permitted or occurs.
(b) the identityLender may grant or withhold its consent to a Transfer and Assumption in its reasonable discretion, experiencesubject, financial conditionhowever, creditworthiness, single purpose nature and bankruptcy remoteness to satisfaction of the Transfereefollowing conditions:
(i) No Default or Event of Default shall have occurred and be continuing;
(ii) Borrower shall have submitted to Lender true, correct and complete copies of any and all information and documents of any kind reasonably requested by Lender concerning the Property, Transferee Mezzanine Borrower, replacement guarantors and indemnitors;
(iii) Evidence satisfactory to Lender shall have been provided showing that the Transferee Mezzanine Borrower and such of its Affiliates as shall be designated by Lender comply and will comply with Article 6, as those provisions may be modified by Lender taking into account the ownership structure of Transferee Mezzanine Borrower and its Affiliates;
(iv) Borrower shall have obtained (and delivered to Lender) a Rating Confirmation with respect to the Transfer and Assumption and all related transactions;
(v) Borrower shall have paid all of Lender's costs and expenses in connection with considering the Transfer and Assumption, and shall have paid the amount requested by Lender as a deposit against Lender's costs and expenses in connection with effecting the Transfer and Assumption;
(vi) Borrower, the Transferee Mezzanine Borrower, and the replacement guarantors and indemnitors shall be have indicated in writing in form and substance reasonably satisfactory to Lender;Lender their readiness and ability to satisfy the conditions set forth in Subsection (c) below; and
(vii) The identity, experience, and financial condition of the Transferee Mezzanine Borrower and the replacement guarantors and indemnitors shall be satisfactory to Lender in its sole and absolute discretion, exercised in good faith.
(c) BorrowersIf Lender consents to the Transfer and Assumption, Transfereethe Transferee Mezzanine Borrower and/or Borrower, Guarantor as the case may be, shall deliver the following to Lender:
(i) Borrower (or Transferee Mezzanine Borrower) shall deliver to Lender an assumption fee in the amount of 1.0% of the then unpaid principal balance of the Loan at the closing of the Transfer and Assumption;
(ii) Borrower, Transferee Mezzanine Borrower, the original and replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be documents reasonably required by Lender or required by the Rating Agencies, as the case may beLender, in form and substance reasonably satisfactory required by Lender, to evidence the Transfer and Assumption, including Loan Document modifications reasonably appropriate in light of such Transfer and Assumption (modifying documentation if Lender requires to address variations in the ownership structure of the Transferee Mezzanine Borrower from that of the Borrower, for example, so long as such modifications do not alter the economics of the Loan or satisfactory to materially increase the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documentsBorrower's obligations thereunder);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transfer.
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Maguire Properties Inc)
Assumption. Borrowers The initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will assume all of the obligations of Borrower hereunder (the “Transferee”) and such Transferee may assume the Loanan "Assumption"), provided no Event of Default exists or material monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Qualified Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may bean assumption agreement, in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV, and such other representations (and evidence of the accuracy of such representations) as the Servicer shall reasonably request;
(ii) such Qualified Successor Borrower shall execute and deliver such Uniform Commercial Code financing statements as may be reasonably requested by Lender;
(iii) Sponsor shall have delivered to Lender an instrument satisfactory to Lender or satisfactory acknowledging the Assumption and ratifying its continued obligations under the Environmental Indemnity and Section 9.19, except that if, upon the Assumption, Borrower delivers to Lender a new environmental indemnity, cooperation agreement (if the Rating Agencies, as the case may beentire Loan has not been previously Securitized) and a guaranty of recourse carveouts, in Lender’s reasonable discretion each case, in the form executed by Sponsor or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) otherwise in form and substance reasonably satisfactory to Lender and executed by a substitute indemnitor that meets the qualifications of a Qualified Equityholder or is otherwise reasonably satisfactory to Lender, which in each case cover indemnified matters first occurring after the Rating Agencies in Lender’s reasonable discretion date of the Assumption, then Sponsor shall have no liability for indemnified matters first occurring after the date of such Assumption;
(iv) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender which are equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions which are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies’ discretion with customary qualifications ; and assumptionsBorrower and the Qualified Successor Borrower shall have delivered such other documents, certificates and legal opinions as Lender shall reasonably request;
(ev) if the Individual Property is transferred, such Qualified Successor Borrower shall deliver (or cause have delivered to be delivered) to Lender, an endorsement to Lender’s title insurance policy Lender all documents reasonably requested by it relating to the change in existence of such Qualified Successor Borrower and the identity due authorization of the vestee Qualified Successor Borrower to assume the Loan and to execute and deliver the execution and delivery of the transfer documentation documents described in this Section 2.2, each in form and substance reasonably acceptable satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(fvi) Borrower pays the Qualified Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Property to the Qualified Successor Borrower;
(vii) Rating Confirmation shall have been received with respect to the legal structure of the successor borrower, the documentation of the Assumption and the related legal opinions; and
(viii) the Servicer shall have received upon request a $25,000 nonrefundable assumption fee and shall have received payment of all reasonable out-of-pocket costs and expenses incurred by Lender and Servicer, as applicable, in connection with such Transferassumption (including reasonable attorneys' fees and costs, including Lender’s reasonable attorneys the cost of an endorsement to the Title Insurance Policy reflecting the conveyance of the Property to the Qualified Successor Borrower, lien search and credit investigation expenses and rating agency fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transfer).
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Assumption. Borrowers The initial Borrower shall have the right at any time to Transfer all of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will contemporaneously assume all of the remaining obligations of Borrower hereunder (the “Transferee”) and such Transferee may assume the Loanan "Assumption"), provided no Event of Default exists or material monetary Default is then continuing (unless the same would be cured by such Transfer) or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Qualified Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identityan assumption agreement, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents;
(fii) such Qualified Successor Borrower pays shall execute and deliver such Uniform Commercial Code financing statements as may be reasonably requested by Lender;
(iii) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender which are reasonably equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions which are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies (provided that Lender may waive any of the foregoing opinions if each of the Rating Agencies, as evidenced by receipt of the Rating Confirmation required pursuant to clause (vi), and Lender determine in their sole and absolute discretion that such opinions are no longer customary in connection with assumptions of securitized commercial mortgage loans of comparable size and are not otherwise necessary or advisable in connection with the Assumption);
(iv) such Qualified Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Borrower and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section 2.2, each in form and substance reasonably satisfactory to Lender, including, but not limited to, a certified copy of the applicable resolutions from all appropriate persons, certified copies of the certificate of formation and Operating Agreement (or the equivalent) of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(v) the Qualified Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Property to the Qualified Successor Borrower or Borrower shall deliver a letter from the title insurer that transfer does not affect validity of the Qualified Title Insurance Policy;
(vi) Rating Confirmation shall have been received with respect to the legal structure of the successor borrower, the documentation of the Assumption to be delivered as provided above and the related legal opinions to be delivered as provided above; and
(vii) the Servicer shall have received upon request a $25,000 nonrefundable assumption fee and shall have received payment of all reasonable out-of-pocket costs and expenses incurred by Lender and Servicer, as applicable, in connection with such Transferassumption (including reasonable attorneys' fees and costs, including Lender’s reasonable attorneys the cost of an endorsement to the Title Insurance Policy reflecting the conveyance of the Property to the Qualified Successor Borrower, lien search and credit investigation expenses and rating agency fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transfer).
Appears in 1 contract
Assumption. Borrowers shall have From and after May 3, 2017, Borrower may permit the right at any time Property Owner to Transfer effectuate an “Assumption” (as defined in the Mortgage Loan Agreement) of the Mortgage Loan by a Successor Property Owner pursuant to Section 2.3 of the Mortgage Loan Agreement and to cause the Loan to be assumed by a Successor Borrower that will (a) own 100% of the equity interests in the Successor Property Owner, (b) assume all of the Individual Properties obligations of Borrower hereunder and under the other Loan Documents and (c) pledge all of its equity interest in one transaction any Successor Property Owner to another party replace the original Collateral hereunder (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided that (x) Lender shall have delivered prior written consent of such Assumption to Borrower, such consent to be given or withheld in Lender’s sole discretion, (y) no Event of Default exists is then continuing or would result therefrom and (z) the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identityan assumption agreement, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such Assumption);
(fii) Borrower pays all reasonable expenses incurred such Uniform Commercial Code financing statements as may be reasonably requested by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) aboveshall be filed;
(giii) 100% of the Loan-to-Value Ratio equity interests in the Successor Property Owner shall not exceed 80%; andhave been pledged to Lender by such Successor Borrower in a manner reasonably satisfactory to Lender, including delivery of certificated Article 8 interests therein, delivery by the Successor Borrower of a pledge agreement substantially in the same form as the Pledge Agreement, pledging all of such equity interests in the Successor Property Owner, and delivery of a consent to such pledge by the Successor Property Owner;
(hiv) a Person satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender (and upon such Assumption by such Person, Sponsor and any other such guarantor shall be released from such obligations, liabilities, guarantees and indemnities);
(v) such Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date in all material respects, including new nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Successor Borrower shall have delivered such other documents, certificates and legal opinions, including relating to tax matters, as Lender shall reasonably request, consistent with those delivered to Lender on the Closing Date;
(vi) such Successor Borrower shall have received delivered to Lender all documents reasonably requested by it relating to the existence of such Successor Borrower and the due authorization of the Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section, each in form and substance reasonably satisfactory to Lender, including a Rating Agency Confirmation certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Successor Borrower, together with respect all amendments thereto, and certificates of good standing or existence for the Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vii) if necessary, the Title Insurance Policies shall have been properly endorsed to reflect the Transfer of the Property to the Successor Property Owner; the Successor Property Owner shall have obtained owner’s policies of title insurance reasonably satisfactory to Lender, with mezzanine endorsements, copies of which shall have been delivered to Lender; and such Transfer.Successor Borrower shall have delivered a UCC insurance policy in favor of Lender insuring Lender’s first-priority security interest in 100% of the equity interests in the Successor Property Owner;
Appears in 1 contract
Assumption. Borrowers The initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will assume all of the obligations of Borrower hereunder (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists or material monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Qualified Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identityan assumption agreement, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents;
(fii) such Qualified Successor Borrower pays shall execute and deliver such Uniform Commercial Code financing statements as may be reasonably requested by Lender;
(iii) a Qualified Equityholder reasonably satisfactory to Lender in its sole discretion shall provide a guaranty of the Indemnified Liabilities in form satisfactory to Lender;
(iv) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender which are equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions which are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Qualified Successor Borrower shall have delivered such other documents, certificates and legal opinions as Lender shall reasonably request;
(v) such Qualified Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Borrower and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section 2.2, each in form and substance reasonably satisfactory to Lender, including, but not limited to, a certified copy of the applicable resolutions from all appropriate persons, certified copies of the certificate of formation and Operating Agreement (or the equivalent) of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vi) the Qualified Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Property to the Qualified Successor Borrower;
(vii) Rating Confirmation shall have been received with respect to the legal structure of the successor borrower, the documentation of the Assumption and the related legal opinions; and
(viii) the Servicer shall have received upon request a nonrefundable assumption fee in an amount equal to 0.50% of the then outstanding Loan Amount (provided, however, that in connection with an Assumption by a Qualified Successor Borrower that is controlled by, and at least 25% of the direct or indirect equity interest in which is owned by, either BPC or Sponsor, the assumption fee shall be $150,000) and shall have received payment of all reasonable out-of-pocket costs and expenses incurred by Lender and Servicer, as applicable, in connection with such Transferassumption (including reasonable attorneys’ fees and costs, including Lender’s reasonable attorneys the cost of an endorsement to the Qualified Title Insurance Policy reflecting the conveyance of the Property to the Qualified Successor Borrower, lien search and credit investigation expenses and rating agency fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transfer).
Appears in 1 contract
Sources: Loan Agreement (KBS Real Estate Investment Trust II, Inc.)
Assumption. Borrowers From and after the first (1st) anniversary of the Closing Date, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists or monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% an assumption agreement (including an assumption of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identitySecurity Instrument in recordable form, experienceif requested by Lender), financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such assumption), and such other representations (and evidence of the accuracy of such representations) as Lender shall reasonably request;
(fii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iii) a party satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender (and upon such assumption by such party, Sponsor and any other such guarantor shall be released from such obligations, liabilities, guarantees and indemnities);
(iv) such Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Successor Borrower shall have delivered such other documents, certificates and legal opinions, including relating to REMIC matters, as Lender shall reasonably request;
(v) such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Successor Borrower and the due authorization of the Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vi) the Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Property to the Successor Borrower;
(vii) the Rating Condition shall have been satisfied with respect to the legal structure of the Successor Borrower, the documentation of the Assumption and the related legal opinions; and
(viii) Borrower pays all shall have paid to Lender a nonrefundable assumption fee in an amount equal to 1.0% of the Principal Indebtedness, and Borrower shall have reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transferassumption.
Appears in 1 contract
Sources: Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Assumption. Borrowers Joining Guarantor hereby unconditionally, jointly and severally, assumes liability for all Guarantees, covenants, warranties, representations, indemnifications, obligations and other Indebtedness of Guarantors now existing or which may hereafter arise under the Guaranty and shall be liable therefor as through Joining Guarantor had originally been a party to the Guaranty. Without limitation of the foregoing, Joining Guarantor, as a primary obligor and not as a surety, unconditionally, jointly and severally, guarantees unto the Purchasers the payment of the Debt when due (whether at the stated maturity, by acceleration or otherwise) in accordance with the terms of the Note Documents. Notwithstanding the foregoing and the other provisions of this Joinder Agreement, to the extent that in a legal proceeding brought within the applicable limitations period it is determined by the final, non-appealable order of a court having jurisdiction over the issue and the applicable parties that Joining Guarantor received less than a reasonably equivalent value in exchange for such Joining Guarantor's incurrence of its obligations under the Guaranty, then and only then the liability of Joining Guarantor under the Guaranty shall be limited to the Guaranteed Debt applicable to such Joining Guarantor. The Purchasers shall have the right at any to determine and designate from time to Transfer all time, without notice or assent of Joining Guarantor, which portions of the Individual Properties in one transaction to another party (the “Transferee”) and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are met:
(a) Borrowers Debt shall pay to Lender a transfer fee be deemed included in the amount of 0.5% of the sum of the Principal Indebtedness Guaranteed Debt. Joining Guarantor acknowledges that such determination and Unfunded Future Advances;
(b) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors designation shall be reasonably satisfactory conclusive, absent manifest error. The Guaranty shall not fail or be ineffective or invalid or be considered too indefinite or contingent with respect to Lender;
Joining Guarantor because the Guaranteed Debt applicable to Joining Guarantor may fluctuate from time to time or for any other reason. Any payment or prepayment by Company or any other Person against the Debt (c) Borrowers, Transferee, other than payments made by a Guarantor and in accordance with the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change procedures described in the identity definition of "Guaranteed Debt" in the vestee Guaranty and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation then only with respect to such TransferGuarantor's liability thereunder) shall be deemed paid first against that portion of the Debt not included in the "Guaranteed Debt" or determined for any reason not to be a part of "Guaranteed Debt," and then shall be paid against any portion of the Debt that is Guaranteed Debt, in such order and manner as the Purchasers shall determine in their sole discretion.
Appears in 1 contract
Assumption. Borrowers At any time after the first (1st) anniversary of the Closing Date, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the “Transferee”) and such Transferee may assume the Loanan "Assumption"), provided no Event of Default exists or material monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Qualified Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% an assumption agreement (including an assumption of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identitySecurity Instrument in recordable form, experienceif requested by Lender), financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such assumption), and such other representations (and evidence of the accuracy of such representations) as the Servicer shall reasonably request;
(fii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iii) a party satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender (and upon such assumption by such party, Sponsor and any other such guarantor shall be released from such obligations, liabilities, guarantees and indemnities);
(iv) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Qualified Successor Borrower shall have delivered such other documents, certificates and legal opinions, including REMIC matters, as Lender shall reasonably request;
(v) such Qualified Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Borrower and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section 2.2, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vi) the Qualified Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Property to the Qualified Successor Borrower;
(vii) after giving effect to the Assumption, the Property shall continue to be managed by an Approved Property Manager;
(viii) the Rating Condition shall have been satisfied with respect to the legal structure of the successor borrower, the documentation of the Assumption and the related legal opinions; and
(ix) Borrower pays all shall have paid to Lender a nonrefundable assumption fee in an amount equal to one percent (1.0%) of the Principal Indebtedness, and Borrower shall have reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such TransferAssumption.
Appears in 1 contract
Assumption. Borrowers Borrower shall have a one-time right to transfer the right at any time Property to Transfer all of the Individual Properties a third party which is not an Identified Affiliate (as defined in one transaction Exhibit B), subject to another party (the “Transferee”) and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are metconditions:
(a) Borrowers shall pay to Lender a transfer fee in there being no Event of Default under the amount of 0.5% Loan Documents, the Environmental Indemnity or the Guaranty at the time of the sum of the Principal Indebtedness and Unfunded Future Advancestransfer;
(b) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness Lender’s approval of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lendertransferee;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation General Transfer Requirements (as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, defined in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents)Exhibit B hereof) have been satisfied;
(d) counsel the Loan to Transferee Value Ratio of the Property at the time of the transfer shall not be greater than 55% , and the replacement guarantors and indemnitors Debt Yield of the Property at the time of the transfer shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptionsnot be less than 11%;
(e) Borrower or the transferee shall pay the applicable Transfer Fee;
(f) the transferee shall expressly assume the Loan Documents and the Environmental Indemnity in a manner satisfactory to Lender and an additional guarantor acceptable to Lender shall execute the Guaranty and the Environmental Indemnity with respect to events arising or occurring from and after the date of the transfer, which additional guarantor must have (in the aggregate if more than one) a net worth (excluding the Individual value of the Property) of not less than the aggregate net worth of the Guarantor (excluding the value of the Property) as of the Closing Date;
(g) the transferee must have a net worth not less than the net worth of the Borrower as of the Closing Date;
(h) the transferee must be experienced in the ownership, management and leasing of properties similar to the Property; and
(i) the Property is transferred, Borrower shall deliver (or cause continue to be deliveredmanaged by a Qualified Manager;
(j) to LenderLender has received from counsel for such transferee, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation such legal opinions as are reasonably necessary or appropriate, in form and substance reasonably acceptable to Lender, including without limitation, enforceability opinions, and to the extent such opinions were issued to Lender at the time the Loan was made, substantive non-consolidation legal opinions and, to the extent necessary, Delaware single member limited liability company legal opinions;
(fk) Borrower pays or transferee shall pay all reasonable costs and expenses incurred by Lender in connection with such Transferthe transfer, including Lender’s title insurance premiums, documentation costs and reasonable attorneys fees and expenses, all recording attorneys’ fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;.
(gl) No transfer shall release Borrower or Guarantor from their obligations under the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation Loan Documents, the Environmental Indemnity or the Guaranty with respect to such Transferevents arising or occurring prior to the date of transfer.
Appears in 1 contract
Sources: Loan Agreement (Inland Real Estate Income Trust, Inc.)
Assumption. Borrowers From and after May 3, 2017, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable an assumption agreement (including an assumption documentsof each Mortgage in recordable form, if requested by Lender);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such Assumption);
(fii) Borrower pays all reasonable expenses incurred such Uniform Commercial Code financing statements as may be reasonably requested by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) aboveshall be filed;
(giii) a Person reasonably satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan-to-Value Ratio Loan Documents pursuant to documentation satisfactory to Lender (and upon such Assumption by such Person, Sponsor and any other such guarantor shall be released from such obligations, liabilities, guarantees and indemnities);
(iv) such Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date in all material respects, including new nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Successor Borrower shall have delivered such other documents, certificates and legal opinions, including relating to grantor trust matters, as applicable, as Lender shall reasonably request, consistent with those delivered to Lender on the Closing Date;
(v) such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Successor Borrower and the due authorization of the Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vi) if necessary, the Title Insurance Policies shall have been properly endorsed to reflect the Transfer of the Properties to the Successor Borrower;
(vii) such Assumption shall not exceed 80%; and
(h) Lender shall have received result in a Rating Agency Confirmation with respect to such Transfer.breach, default, termination, or modification of the Master Lease or any Ground Lease;
Appears in 1 contract
Sources: Loan Agreement (Toys R Us Inc)
Assumption. Borrowers From and after the first anniversary of the Closing Date, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists or monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% an assumption agreement (including an assumption of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identityapplicable Mortgage in recordable form, experienceif requested by Lender), financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV (recast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such Assumption), and such other representations (and evidence of the accuracy of such representations) as Lender shall reasonably request;
(fii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iii) a Replacement Guarantor assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender first arising from and after the date of such assumption (and upon such assumption by such Person, Sponsor and any other such guarantor shall be released on a forward-looking basis from such obligations, liabilities, guarantees and indemnities);
(iv) such Successor Borrower pays shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Successor Borrower shall have delivered such other documents, certificates and legal opinions, including relating to REMIC or grantor trust matters, as applicable, Lender shall reasonably request;
(v) such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Successor Borrower and the due authorization of the Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vi) the Form T-38 endorsement to the Title Insurance Policies addressing the Transfer of the Properties to the Successor Borrower;
(vii) the Rating Condition shall have been satisfied with respect to the legal structure of the Successor Borrower, the documentation of the Assumption and the related legal opinions; and
(viii) concurrently with the assumption, Borrower shall have paid to Lender a nonrefundable assumption fee in an amount equal to 0.25% of the Principal Indebtedness, and Borrower shall have reimbursed Lender for its reasonable actual and documented out-of-pocket costs and expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such TransferAssumption.
Appears in 1 contract
Sources: Loan Agreement (Parkway, Inc.)
Assumption. Borrowers The initial Borrower shall have the right right, at any time Borrower’s sole cost and expense, to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will assume all of the obligations of Borrower hereunder (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists or material monetary Default has occurred and is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(a) Borrowers such Qualified Successor Borrower shall pay have executed and delivered to Lender a transfer fee an assumption agreement (including, without limitation, an assumption in the amount recordable form of 0.5% each Mortgage and Assignment of the sum of the Principal Indebtedness Rents and Unfunded Future Advances;
(b) the identityLeases, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agenciesextent requested by Lender), as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV, and such other representations (and evidence of the accuracy of such representations) as the Servicer shall reasonably request;
(b) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(c) a party satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender;
(d) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender which are equivalent to the opinions delivered to Lender on the Closing Date, including, without limitation, new nonconsolidation opinions which are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Qualified Successor Borrower shall have delivered such other documents, certificates and legal opinions as Lender shall reasonably request; | NY\1631294.13 mle ▇▇ ▇▇▇▇ Loan Agreement||
(e) such Qualified Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Borrower and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section 2.2, each in form and substance reasonably satisfactory to Lender, including, without limitation, a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable the Qualified Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Properties to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;Qualified Successor Borrower; and
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender Rating Condition shall have received a Rating Agency Confirmation been satisfied with respect to the legal structure of the successor borrower, the documentation of the Assumption and the related legal opinions. Upon the completion of any Assumption in accordance with the provisions of this Section 2.2, Borrower and Sponsor shall, pursuant to mutually satisfactory documentation, be released from all obligations and liabilities under the Loan Documents that arise from and after the date of such Transfercompletion.
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust III, Inc.)
Assumption. Borrowers From and after the first anniversary of the Closing Date, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Successor Borrower that will assume all of the obligations of Borrower hereunder and under the other Loan Documents (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists or monetary Default is then continuing or would result therefrom and the following conditions are met:
met to the reasonable satisfaction of Lender: (ai) Borrowers such Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% an assumption agreement (including an assumption of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identityapplicable Mortgage in recordable form, experienceif requested by Lender), financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
, 40 evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV (frecast, as necessary, such that representations that specifically relate to Closing Date are remade as of the date of such Assumption), and such other representations (and evidence of the accuracy of such representations) as Lender shall reasonably request; (ii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed; (iii) a Replacement Guarantor assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender first arising from and after the date of such assumption (and upon such assumption by such Person, Sponsor and any other such guarantor shall be released on a forward- looking basis from such obligations, liabilities, guarantees and indemnities); (iv) such Successor Borrower pays shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Successor Borrower shall have delivered such other documents, certificates and legal opinions, including relating to REMIC or grantor trust matters, as applicable, Lender shall reasonably request; (v) such Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Successor Borrower and the due authorization of the Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register; (vi) the Form T-38 endorsement to the Title Insurance Policies addressing the Transfer of the Properties to the Successor Borrower; (vii) the Rating Condition shall have been satisfied with respect to the legal structure of the Successor Borrower, the documentation of the Assumption and the related legal opinions; and (viii) concurrently with the assumption, Borrower shall have paid to Lender a nonrefundable assumption fee in an amount equal to 0.25% of the Principal Indebtedness, and Borrower shall have reimbursed Lender for its reasonable actual and documented out-of-pocket costs and expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transfer.Assumption. 41
Appears in 1 contract
Sources: Loan Agreement (Parkway, Inc.)
Assumption. Borrowers (a) Each of the initial Obligors shall have the right at any time to Transfer all or any portion of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will assume all of the obligations of the Borrowers hereunder (the “Transferee”) and such Transferee may assume the Loanan "Assumption"), provided no Event of Default exists or material monetary Default is then continuing or would result therefrom and the following conditions are met:
(i) such Qualified Successor Borrower shall have executed and delivered to Lender an assumption agreement, in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents; provided that such assumption agreement shall neither (a) Borrowers increase the financial obligations of, or personal recourse to, the Qualified Successor Borrower or decrease the rights of the Qualified Successor Borrower, relative to the obligations of the transferor, nor (b) otherwise materially modify the provisions of the Loan Documents, other than the inclusion of representations and warranties covering customary matters relating to the Qualified Successor Borrower such as due organization, existence, good standing, and authority and the validity and enforceability of the assumption document and the Loan Documents as against the Qualified Successor Borrower;
(ii) such Qualified Successor Borrower shall pay execute and deliver such Uniform Commercial Code financing statements as may be reasonably requested by Lender;
(iii) such Qualified Successor Borrower shall have delivered to Lender a transfer fee in legal opinions of counsel reasonably acceptable to Lender which are substantially equivalent to the amount of 0.5% opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions; and the Obligors and the Qualified Successor Borrower shall have delivered such other documents, certificates and legal opinions as Lender shall reasonably request;
(iv) each Qualified Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the sum Properties or portion thereof to the Qualified Successor Borrower;
(v) each of the Principal Indebtedness Rating Agencies shall have delivered Rating Confirmation with respect to the satisfaction of the foregoing requirements; and
(vi) Lender shall have received payment of all reasonable out-of-pocket costs and Unfunded Future Advances;expenses incurred by Lender in connection with the foregoing (including the reasonable fees and expenses of legal counsel and the Rating Agencies, the reasonable out-of-pocket expenses of the Servicer and the cost of title endorsements).
(b) If the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness Qualified Successor Borrower is not an Affiliate of the TransfereeNonrecourse Carveout Indemnitor, then concurrently with an Assumption, Lender shall execute an instrument in form and the replacement guarantors and indemnitors shall be substance reasonably satisfactory to Lender;
(cthe Nonrecourse Carveout Indemnitor and Lender pursuant to which the Nonrecourse Carveout Indemnitor shall be released from all of its duties and obligations arising under the Environmental Indemnity and Section 9.14 and Section 9.19(b) Borrowersof this Agreement from and after the date of such Assumption with respect to the Collateral or portion thereof so transferred to a Qualified Successor Borrower, Transferee, Guarantor provided that a Qualified Equityholder or another party reasonably satisfactory to Lender executes and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by delivers to Lender or required by the Rating Agencies, as the case may bean instrument, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement Nonrecourse Carveout Indemnitor and such Qualified Equityholder pursuant to Lender’s title insurance policy relating to the change in the identity of the vestee which such Qualified Equityholder assumes such duties and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transferobligations.
Appears in 1 contract
Assumption. Borrowers shall have the right at any time Lender’s consent to a Transfer of all of the Individual Properties Property (which may be to more than one transferee which is not an Affiliate of Borrower or Guarantor, 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 forty-five (45) 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 $150,000;
(ii) Borrower or Transferee shall pay any and all reasonable actual out-of-pocket costs incurred by Lender or Servicer in one connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements, 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), it being acknowledged and agreed that Borrower shall have this obligation even if the transaction is not consummated;
(iii) the Persons proposed to another party take title to the Property (the “Transferee”), the Person that Controls the Transferee (the “Transferee’s Sponsor”) or any other direct or indirect owner of Transferee that Controls Transferee 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) intentionally omitted;
(v) Transferee, Transferee’s Sponsor that Controls Transferee or the Transferee’s proposed Qualified Replacement Guarantor shall have sufficient financial condition and creditworthiness, as reasonably determined by Lender, and 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 ten (10) 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 effective date of such transfer as evidenced by 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 Sponsor or the Qualified Replacement Guarantor which is not reasonably acceptable to Lender and Lender shall have received Satisfactory Search Results with respect to the foregoing Persons;
(viii) intentionally omitted;
(ix) Transferee may assume and SPE Component Entity, if any, shall satisfy all the Loanrepresentations and covenants set forth in Sections 3.7, provided 3.29 and 3.32 of this Agreement, no Event of Default exists or would shall occur as a result therefrom and the following conditions are met:
(a) Borrowers shall pay to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transfereesuch Transfer, and the replacement guarantors Transferee and indemnitors SPE Component Entity, if any, shall deliver all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender;
(cx) Borrowersif the Transfer described in this Section 6.4 occurs after a Securitization, Transferee and the assumption shall be approved by the Rating Agencies selected by Lender, which approval shall take the form of Rating Agency Confirmations;
(xi) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender a New Non-Consolidation Opinion reflecting such Transfer reasonably satisfactory in form and substance to Lender and, if applicable, the Rating Agencies;
(xii) prior to any release of Guarantor, a Qualified Replacement Guarantor acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity from and after the effective date of such transfer executed by Guarantor or execute a replacement guarantors guaranty and indemnitors shall execute environmental indemnity reasonably satisfactory to Lender, and deliver Lender receives any and all documentation as may be legal opinions of counsel reasonably required by Lender in connection therewith;
(xiii) Borrower or required Transferee shall deliver, at Borrower’s or Transferee’s sole cost and expense, an endorsement to the Title Insurance Policy, which endorsement shall insure the Lien of the Security Instrument as modified by the Rating Agenciesassumption agreement, as a valid first lien on the case may beProperty, shall name the Transferee as owner of the Property, and 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 applicable Title Insurance Policy issued on the Closing Date and the Permitted Encumbrances;
(xiv) the Property shall be managed by (x) a Qualified Manager or (y) an Affiliated Manager of Transferee or the Qualified Replacement Guarantor to the extent such Affiliated Manager has demonstrated expertise in operating and managing properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender, in each case, pursuant to a replacement management agreement reasonably acceptable to Lender; and
(xv) the organizational documents of Transferee and SPE Component Entity, if any, shall include provisions which shall cause each of them to be a special purpose entity satisfying the requirements of Article 5 herein and shall otherwise be in form and substance reasonably satisfactory to Lender or satisfactory Lender. Immediately upon a Transfer to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to such Transferee and the replacement guarantors satisfaction of all of the above requirements, the named Borrower and indemnitors Guarantor herein shall deliver to Lender be released from all liability under this Agreement, the Note, the Security Instrument, the Guaranty, Environmental Indemnity and the Rating Agencies customary opinion letters relating to other Loan Documents arising or accruing after such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to Transfer. The foregoing release shall be effective upon the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity date of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable but Lender agrees to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transferprovide written evidence thereof reasonably requested by Borrower.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital New York City REIT, Inc.)
Assumption. Borrowers Notwithstanding the foregoing provisions of this Paragraph 15, a sale of the Property and assumption of this Loan (hereinafter, an “Assumption”) in its entirety prohibited by the foregoing may be permitted during the term of the Note to any entity, subject to Beneficiary’s prior written consent, which shall not be unreasonably withheld or delayed, provided that each of the following terms and conditions are satisfied:
(i) Grantor is in compliance with all terms and conditions of the Loan Documents and no default has occurred and is then continuing hereunder or under any of the other Loan Documents and the proposed transferee (“Transferee”) agrees to continue to comply with and be bound by all provisions of the Loan Documents;
(ii) Grantor gives Beneficiary written notice of the terms of such prospective Assumption not less than forty-five (45) days before the date on which such Assumption is scheduled to take place and, concurrently therewith, gives Beneficiary all such information concerning Transferee as Beneficiary reasonably requests. Beneficiary shall have the right at any time to Transfer all approve or disapprove the proposed Transferee. In determining whether to give or withhold its approval of the Individual Properties proposed Transferee, Beneficiary shall consider Transferee’s experience in one transaction owning and operating a facility similar to another party (the “Property, Transferee”) ’s entity structure, Transferee’s financial strength, the Transferee’s general business standing and such Transferee may assume the LoanTransferee’s relationship and experience with contractors, provided no Event of Default exists or would result therefrom vendors, tenants, lenders and the following conditions are met:other business entities;
(aiii) Borrowers Grantor shall pay to Lender Beneficiary (A) in connection with such proposed Assumption, all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees incurred by Beneficiary and any rating agency approval fees (whether such transfer is approved or rejected), plus (B) concurrently with the closing of such Assumption, a transfer nonrefundable assumption fee in the an amount of equal to 0.5% of the sum then outstanding principal balance of the Principal Indebtedness and Unfunded Future AdvancesNote;
(biv) Transferee executes and delivers such documents and agreements as Beneficiary shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Beneficiary may reasonably require, including, without limitation, hazard insurance endorsements or certificates and other similar materials as Beneficiary may deem necessary at the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness time of the TransfereeAssumption, all in form and substance satisfactory to Beneficiary, including, without limitation, an endorsement or endorsements to Beneficiary’s loan title insurance policy insuring the lien of this Deed of Trust, extending the effective date of such policy to the date of execution and delivery of the assumption agreement referenced in this subparagraph 15(c)(iv), with no additional exceptions added to such policy, except for items consented to by Beneficiary or permitted under this Deed of Trust, and insuring that fee simple title to the replacement guarantors and indemnitors shall be reasonably satisfactory to LenderProperty is vested in the Transferee;
(cv) BorrowersGrantor executes and delivers to Beneficiary, without any cost or expense to Beneficiary, a release of Beneficiary, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the other security documents through and including the date of the closing of the Assumption, which agreement shall be in form and substance satisfactory to Beneficiary and shall be binding upon the Transferee;
(vi) subject to the provisions of Paragraph 11 of the Note, Guarantor such Assumption is not construed so as to relieve Grantor of any personal liability under the Note or any of the Loan Documents for any act or events occurring or obligations arising prior to or simultaneously with the closing of such Assumption (excluding payment of the principal amount of the Note and interest accrued thereon) and Grantor executes, without any cost or expense to Beneficiary, such documents and agreements as Beneficiary shall reasonably require to evidence and effectuate the ratification of such personal liability;
(vii) Transferee shall furnish, if Transferee is a corporation, partnership or other entity, all appropriate papers evidencing Transferee’s capacity in good standing and the replacement guarantors qualification of the signers to execute the assumption of the Obligations, which paper shall include certified copies of all documents relating to the organization and indemnitors shall execute formation of Transferee and deliver any of the entities, if any, which are partners, members or shareholders of Transferee. Transferee and all documentation as may be reasonably required by Lender such constituent partners, members or required by shareholders of the Rating Agencies, Transferee (as the case may be) as Beneficiary shall require, shall be single purpose entities, whose formation documents shall be approved by counsel to Beneficiary. Transferee must be a bankruptcy remote entity and must have two (2) individuals recommended to Beneficiary and approved by counsel to Beneficiary to serve as independent directors of Transferee (if Transferee is a corporation) or Transferee’s corporate general partner or an independent member or in Beneficiary’s discretion, manager of Transferee if Transferee is a limited liability company. The consent of such independent parties shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Transferee;
(viii) Transferee shall furnish an opinion of counsel satisfactory to Beneficiary and its counsel stating that (A) Transferee’s formation documents provide proof for the matters described in subparagraph (vii) above, (B) the assets of Transferee will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Transferee, in the event of a bankruptcy or insolvency of any such entity if required by any rating agency after the securitization of the Loan, (C) the assumption of the Obligations has been duly authorized, executed and delivered and the Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (D) Transferee and any entity which is a controlling stockholder, general partner or managing member of Transferee have been duly organized and are in good standing and in existence, and (E) with respect to such other matters as Beneficiary or any applicable rating agency may request; and
(ix) if the Loan has previously been securitized pursuant to Paragraph 44, Beneficiary shall have received evidence in writing from the rating agencies to the effect the proposed transfer will not result in a downgrade, qualification, reduction or withdrawal of any rating initially assigned or to be assigned to any securities issued in connection with the Loan. Any such Assumption shall not be construed as to relieve any current Guarantors of their obligations under any guarantees or indemnity agreements executed in connection with the Note, provided that if Transferee or a party associated with Transferee approved by Beneficiary in its sole discretion assumes the obligations of the current Guarantors under their guarantees or indemnity agreements and Transferee or such party associated with Transferee if applicable, executes, without any cost or expense to Beneficiary, a new guarantee and/or indemnity agreement in form and substance reasonably satisfactory to Lender Beneficiary, then Beneficiary shall release the current Guarantors from all obligations first arising under their guarantees or satisfactory to indemnity agreements after the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents)closing of such Assumption;
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transfer.
Appears in 1 contract
Sources: Leasehold Deed of Trust, Security Agreement and Fixture Filing (Maguire Properties Inc)
Assumption. Borrowers At any time after the first anniversary of the Closing Date, the initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will assume all of the obligations of Borrower hereunder (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists or material monetary Default is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Qualified Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identityan assumption agreement, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV, and such other representations (and evidence of the accuracy of such representations) as the Servicer shall reasonably request;
(fii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iii) a party satisfactory to Lender in its sole discretion assumes all obligations, liabilities, guarantees and indemnities of Sponsor and any other guarantor under the Loan Documents pursuant to documentation satisfactory to Lender;
(iv) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender which are equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions which are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Qualified Successor Borrower shall have delivered such other documents, certificates and legal opinions as Lender shall reasonably request;
(v) such Qualified Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Borrower and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section 2.2, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vi) the Qualified Title Insurance Policy shall have been properly endorsed to reflect the Transfer of the Property to the Qualified Successor Borrower;
(vii) after giving effect to the Assumption, the Property shall continue to be managed by an Approved Property Manager;
(viii) the Rating Condition shall have been satisfied with respect to the legal structure of the successor borrower, the documentation of the Assumption and the related legal opinions; and
(ix) Borrower pays all shall have paid to Lender a nonrefundable assumption fee in an amount equal to 1.0% of the Principal Indebtedness, and Borrower shall have reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such TransferAssumption.
Appears in 1 contract
Assumption. Borrowers shall have the right at any time Lender’s consent to a Transfer of all of the Individual Properties Property (which may be to more than one transferee which is not an Affiliate of Borrower or Guarantor, 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 forty-five (45) 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 $150,000;
(ii) Borrower or Transferee shall pay any and all reasonable actual out‑of‑pocket costs incurred by Lender or Servicer in one connection with such Transfer (including, without limitation, Lender’s reasonable counsel fees and disbursements, 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), it being acknowledged and agreed that Borrower shall have this obligation even if the transaction is not consummated;
(iii) the Persons proposed to another party take title to the Property (the “Transferee”), the Person that Controls the Transferee (the “Transferee’s Sponsor”) or any other direct or indirect owner of Transferee that Controls Transferee 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) intentionally omitted;
(v) Transferee, Transferee’s Sponsor that Controls Transferee or the Transferee’s proposed Qualified Replacement Guarantor shall have sufficient financial condition and creditworthiness, as reasonably determined by Lender, and 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 ten (10) 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 effective date of such transfer as evidenced by 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 Sponsor or the Qualified Replacement Guarantor which is not reasonably acceptable to Lender and Lender shall have received Satisfactory Search Results with respect to the foregoing Persons;
(viii) intentionally omitted;
(ix) Transferee may assume and SPE Component Entity, if any, shall satisfy all the Loanrepresentations and covenants set forth in Sections 3.7, provided 3.29 and 3.32 of this Agreement, no Event of Default exists or would shall occur as a result therefrom and the following conditions are met:
(a) Borrowers shall pay to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transfereesuch Transfer, and the replacement guarantors Transferee and indemnitors SPE Component Entity, if any, shall deliver all organizational documentation reasonably requested by Lender, which shall be reasonably satisfactory to Lender;
(cx) Borrowersif the Transfer described in this Section 6.4 occurs after a Securitization, Transferee and the assumption shall be approved by the Rating Agencies selected by Lender, which approval shall take the form of Rating Agency Confirmations;
(xi) Borrower or Transferee, at its sole cost and expense, shall deliver to Lender a New Non-Consolidation Opinion reflecting such Transfer reasonably satisfactory in form and substance to Lender and, if applicable, the Rating Agencies;
(xii) prior to any release of Guarantor, a Qualified Replacement Guarantor acceptable to Lender shall have assumed all of the liabilities and obligations of Guarantor under the Guaranty and Environmental Indemnity from and after the effective date of such transfer executed by Guarantor or execute a replacement guarantors guaranty and indemnitors shall execute environmental indemnity reasonably satisfactory to Lender, and deliver Lender receives any and all documentation as may be legal opinions of counsel reasonably required by Lender in connection therewith;
(xiii) Borrower or required Transferee shall deliver, at Borrower’s or Transferee’s sole cost and expense, an endorsement to the Title Insurance Policy, which endorsement shall insure the Lien of the Security Instrument as modified by the Rating Agenciesassumption agreement, as a valid first lien on the case may beProperty, shall name the Transferee as owner of the Property, and 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 applicable Title Insurance Policy issued on the Closing Date and the Permitted Encumbrances;
(xiv) the Property shall be managed by (x) a Qualified Manager or (y) an Affiliated Manager of Transferee or the Qualified Replacement Guarantor to the extent such Affiliated Manager has demonstrated expertise in operating and managing properties similar in location, size, class and operation to the Property, which expertise shall be reasonably determined by Lender, in each case, pursuant to a replacement management agreement reasonably acceptable to Lender; and
(xv) the organizational documents of Transferee and SPE Component Entity, if any, shall include provisions which shall cause each of them to be a special purpose entity satisfying the requirements of Article 5 herein and shall otherwise be in form and substance reasonably satisfactory to Lender or satisfactory Lender. Immediately upon a Transfer to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to such Transferee and the replacement guarantors satisfaction of all of the above requirements, the named Borrower and indemnitors Guarantor herein shall deliver to Lender be released from all liability under this Agreement, the Note, the Security Instrument, the Guaranty, Environmental Indemnity and the Rating Agencies customary opinion letters relating to other Loan Documents arising or accruing after such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to Transfer. The foregoing release shall be effective upon the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity date of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable but Lender agrees to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transferprovide written evidence thereof reasonably requested by Borrower.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital New York City REIT, Inc.)
Assumption. Borrowers shall have the right at any time Assignee agrees to Transfer all of the Individual Properties in one transaction to another party (the “Transferee”) and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are met:
(a) Borrowers shall perform, pay to Lender a transfer fee and discharge (i) all those trade accounts payable and (ii) all those accrued expenses and withholdings (A) reflected in the amount Closing Balance Sheet as "Current Liabilities," except to the extent performed, paid or discharged prior to the date hereof, or (B) which are outstanding on the date hereof and which were incurred in the ordinary course of 0.5% business or with the express written consent of the sum Chief Financial Officer of Assignee (collectively, the Principal Indebtedness and Unfunded Future Advances;
"Assumed Current Liabilities"), (b) perform and discharge in accordance with their terms those (A) obligations outstanding on the identitydate hereof under the Contracts, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of including but not limited to the TransfereeCollective Agreement, and (B) issued, outstanding but uncleared checks of Assignor (the replacement guarantors "Checks") to the extent the Checks are classified and indemnitors shall be reasonably satisfactory to Lender;
reflected as trade accounts payable on the Closing Balance Sheet and perform, pay or discharge any other Assumed Liability, (c) Borrowersperform, Transfereedischarge and pay in accordance with their terms those liabilities directly arising after the date hereof from any agreement, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may commitment, purchase, order, contract, license, lease, right or other contract document which Assignee has requested be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory transferred to Lender or satisfactory it pursuant to the Rating AgenciesAsset Purchase Agreement but which has not been so transferred due to the failure of Assignor to obtain the consent or approval required for transfer, provided that Assignee has requested and received the same economic benefit of such contract pursuant to the Asset Purchase Agreement and such liability shall not have arisen as the case may bea result of Assignor's actions or inactions, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee perform, pay and discharge any other liabilities of Assignor included in the replacement guarantors Closing Balance Sheet other than any such liabilities which are specifically excluded herein and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) perform, pay and discharge any liability of Assignor incurred with the express written consent of the Chief Financial Officer of Assignee since the Balance Sheet Date. Notwithstanding the foregoing, in no event shall Assignee be required to assume, agree to perform, pay, or discharge and Assignor shall remain unconditionally liable for, all obligations, liabilities and commitments, fixed or contingent, of Assignor, including but not limited to: (i) with respect to all periods prior to the date hereof, except as specifically set forth in Section III of the Asset Purchase Agreement, severance, termination or other payments or benefits (including but not limited to post-retirement benefits including but not limited to those owing under Assignor's severance policy), any union contract or any employment agreement to any employees (union or non-union), sales agents or independent contractors employed by Assignor prior to the date hereof, liabilities arising under any federal, state or local "plant closing law", liabilities accruing under the Assignor's employee benefit plans, vacation pay plans or programs, retirement plans, pension plans or savings or profit sharing plans heretofore or presently maintained by Assignor; (ii) worker's compensation claims; (iii) stock option or other stock-based awards made to employees of Assignor or any subsidiary of Assignor, if any; (iv) liabilities for any federal, state or local income, gross receipts, license, payroll, excise, withholding, transfer, registration, value added, alternative, add-on minimum, sales and/or compensating use tax taxes (including interest, penalties and additions to such taxes) or any deferred income taxes of Assignor; (v) liabilities incurred in connection with violations of occupational safety, wage, health, welfare, employee benefit or Environmental Laws or regulations, which violation did not result from the Individual Property is transferredaction or inaction of Assignee subsequent to the date hereof including, Borrower shall deliver (but not limited to, any claim arising from the violation of any law, regulation or cause ordinance relating to be delivered) to Lender, an endorsement to Lender’s title insurance policy environmental matters or disposal of hazardous substances and liabilities relating to the change remediation of environmental conditions; (vi) liabilities to the extent related solely to the Excluded Assets; (vii) any tax (including but not limited to any federal, state or local income, franchise, single business, value added, excise, customs, intangible, transfer, recording, documentary or other tax) imposed upon, or incurred by, Assignor, if any, in connection with or related to the identity of Asset Purchase Agreement or the vestee transactions contemplated thereby (but excluding any sales and use tax imposed by any taxing authority with respect to the execution sale, assignment and delivery of the transfer documentation Business and the Assets); (viii) other than the Assumed Liabilities, any liabilities of Assignor to third parties arising out of the failure of Assignor to obtain any necessary consents to the assignment to Assignee of the Contracts or Permits (including damages asserted by third parties for breach of such Contracts or Permits due to the failure to obtain such consents); (ix) except to the extent reserved for on the Closing Balance Sheet, liabilities which are undisclosed or contingent; (x) liabilities, other than the Assumed Liabilities, to creditors of Assignor; (xi) liabilities for any state franchise taxes or annual license or other fees relating to qualification as a foreign corporation or authorization to do business in form such states (including interest, penalties and substance reasonably acceptable additions to Lender;
such taxes and fees); (fxii) Borrower pays all reasonable expenses liabilities resulting from any investigations or inquiries by governmental authorities relating to the Business; (xiii) liabilities with respect to the operation of the Business prior to the date hereof that may be incurred by Lender Assignor as penalties, fines, charges or assessments by the DEA; (xiv) liabilities or obligations in respect of preferred shares of capital stock of Assignor or the holders thereof; (xv) liabilities (including without limitation any liabilities under the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C ▇▇.▇▇. 9601 et seq.) arising out of or incurred in connection with any Hazardous Material located in, on, under, or originating from the Real Estate, equipment of any type thereon and/or leasehold improvements prior to the date hereof, whether the existence of such TransferHazardous Materials is currently known or unknown, including Lender’s reasonable attorneys fees and expensesas well as any liabilities arising out of or in connection with any Environmental Law relating in any way to the conduct of the Business prior to the date hereof; (xvi) liabilities or obligations in respect of Assignor's relationship with Meadow Trucking, all recording fees, and all Inc.; (xvii) liabilities or obligations relating to any brokerage fees payable to by Assignor upon the applicable title company for the delivery to Lender consummation of the endorsement referred to transaction contemplated by the Asset Purchase Agreement; and (xviii) any other liabilities of any kind or nature whether now in clause (e) above;
(g) the Loan-to-Value Ratio shall existence or arising hereafter not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transferexpressly assumed by Assignee.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Drug Guild Distributors Inc)
Assumption. Borrowers shall have the right at any time to Transfer all of the Individual Properties in one transaction to another party (the “Transferee”) and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are met:
(a) Borrowers In the event Mortgage Borrower obtains the consent of Mortgage Lender and the Senior Mezzanine Lender to a Transfer of the Property subject to, and assuming, the Mortgage Loan Documents to another Person (a "TRANSFEREE MORTGAGE BORROWER"), such Transfer shall pay to Lender a transfer fee in nevertheless not be permitted hereunder unless (1) the amount sole holder of 0.5100% of the sum equity interests in the Transferee Senior Mezzanine Borrower (defined below) (the "TRANSFEREE JUNIOR MEZZANINE BORROWER") pledges its entire equity interest in the Transferee Senior Mezzanine Borrower to Lender pursuant to a pledge agreement in the form of the Principal Indebtedness and Unfunded Future Advances;
Pledge Agreement or otherwise acceptable to Lender in its sole discretion, (b2) the identity, experience, financial condition, creditworthiness, single purpose nature Transferee Junior Mezzanine Borrower is substituted for and bankruptcy remoteness assumes all of Borrower's obligations under the TransfereeLoan Documents, and the replacement guarantors and indemnitors assume all of the obligations of Borrower Principal under the Loan Documents (collectively, a "TRANSFER AND ASSUMPTION"), (3) Lender approves such Transfer and Assumption (including without limitation the creditworthiness of the proposed "Transferee Senior Mezzanine Borrower") in Lender's reasonable discretion, and (4) Transferee Senior Mezzanine Borrower pledges 100% of its interest in Transferee Mortgage Borrower and otherwise complies with all of the terms of Section 7.5 of the Senior Mezzanine Loan Agreement. For purposes of this Section 7.5, "Transferee Senior Mezzanine Borrower" shall be reasonably satisfactory mean the sole holder of 100% of the equity interests in the Transferee Mortgage Borrower. Borrower may make a written application to Lender for Lender;
's consent to the Transfer and Assumption, subject to the conditions set forth in paragraphs (b) and (c) Borrowersof this Section below. Together with such written application, TransfereeBorrower will pay to Lender the reasonable review fee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably not to exceed $25,000, then required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors . Borrower also shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity pay on demand all of the vestee costs and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such TransferLender, including Lender’s reasonable attorneys attorneys' fees and expenses, all recording feesand including the fees and expenses of Rating Agencies, if applicable, and all fees payable to other outside entities, in connection with considering any proposed Transfer and Assumption, whether or not the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such Transfersame is permitted or occurs.
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Maguire Properties Inc)
Assumption. Borrowers The initial Borrower shall have the right at any time to contemporaneously Transfer all of the Individual Properties in one transaction Collateral to another party a Qualified Successor Borrower that will assume all of the obligations of Borrower hereunder (the an “TransfereeAssumption”) and such Transferee may assume the Loan), provided no Event of Default exists is then continuing or would result therefrom and the following conditions are metmet to the reasonable satisfaction of Lender:
(ai) Borrowers such Qualified Successor Borrower shall pay have executed and delivered to Lender a transfer fee in the amount of 0.5% of the sum of the Principal Indebtedness and Unfunded Future Advances;
(b) the identityan assumption agreement, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Transferee, and the replacement guarantors and indemnitors shall be reasonably satisfactory to Lender;
(c) Borrowers, Transferee, Guarantor and the replacement guarantors and indemnitors shall execute and deliver any and all documentation as may be reasonably required by Lender or required by the Rating Agencies, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);
(d) counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to the Rating Agencies in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;
(e) if the Individual Property is transferred, Borrower shall deliver (or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity of the vestee and the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV, and such other representations (and evidence of the accuracy of such representations) as Lender (or the Servicer) shall reasonably request;
(fii) the obligations of each Operating Lessee under their respective Operating Leases shall have been assumed by a Qualified Successor Operating Lessee pursuant to an assumption agreement, in form and substance reasonably acceptable to Lender, and such Qualified Successor Operating Lessee shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Operating Lessee and the due authorization of such Qualified Operating Lessee to assume the obligations under the relevant Operating Lease, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Operating Lessee, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Operating Lessee issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(iii) such Qualified Successor Borrower pays shall execute and deliver such Uniform Commercial Code financing statements as may be reasonably requested by Lender;
(iv) either (A) such Qualified Successor Borrower shall deliver to Lender a new environmental indemnity and guaranty of recourse carveouts, in each case, in form and substance satisfactory to Lender, with respect to each Property, and executed by a substitute indemnitor satisfactory to Lender, which in each case cover indemnified matters first occurring after the date of the Assumption, in which event Sponsor shall have no liability for indemnified matters first occurring after the date of such Assumption or (B) Sponsor shall agree to continue to be obligated under the Environmental Indemnity and Recourse Guaranty and shall execute and deliver such documents as Lender shall require to confirm and evidence the same;
(v) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender which are reasonably equivalent to the opinions delivered to Lender on the date hereof, including new nonconsolidation opinions which are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower and the Qualified Successor Borrower shall have delivered such other documents and certificates as Lender shall reasonably request;
(vi) such Qualified Successor Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Borrower and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section 2.3, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(vii) the Qualified Title Insurance Policies shall have been properly endorsed to reflect the Transfer of the Properties to the Qualified Successor Borrower;
(viii) such Qualified Successor Borrower shall have delivered to Lender evidence reasonably satisfactory to Lender of any required approval or consent of any Governmental Authority, including the Gaming Authorities, that has direct or indirect authority or oversight over Borrower, the Properties, Operating Lessee or the operations conducted at the Properties to the change in ownership and/or operator of the Properties (or any part thereof);
(ix) Rating Confirmation shall have been received with respect to the legal structure of the Qualified Successor Borrower (and, if applicable, each Qualified Successor Operating Lessee), the documentation of the Assumption and the related legal opinions;
(x) unless the Sponsor Guaranty shall have previously terminated in accordance with its terms, either (A) such Qualified Successor Borrower shall deliver to Lender a replacement guaranty in form and substance substantially similar to the Sponsor Guaranty, or otherwise in a form and substance satisfactory to Lender, executed by a substitute guarantor approved by Lender in its sole discretion or (B) Sponsor shall agree to continue to be obligated under the Sponsor Guaranty and shall execute and deliver such documents as Lender shall require to confirm and evidence the same;
(xi) the prior written consent of Mezzanine Lender pursuant to the Mezzanine Loan Document shall have been received; and
(xii) with respect to the second Assumption and each subsequent Assumption thereafter, the Servicer shall have received upon request a nonrefundable assumption fee of $1,000,000 and shall have received payment of all reasonable out-of-pocket costs and expenses incurred by Lender and Servicer, as applicable, in connection with such Transferassumption (including reasonable attorneys’ fees and costs, including Lender’s reasonable attorneys the cost of an endorsement to the Title Insurance Policy reflecting the conveyance of the Properties to the Qualified Successor Borrower, lien search and credit investigation expenses and rating agency fees and expenses). Upon an Assumption by a Qualified Successor Borrower in accordance with this Section 2.3, the initial Borrower shall be replaced by such Qualified Successor Borrower as “Borrower” for all recording fees, purposes under this Agreement and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) other Loan Documents and Lender shall have received a Rating Agency Confirmation with respect release Borrower from any liability due to any Indebtedness arising from and after the date of such TransferAssumption.
Appears in 1 contract
Sources: Loan Agreement (American Casino & Entertainment Properties LLC)
Assumption. Borrowers Notwithstanding the foregoing provisions of this Paragraph 15, a sale of the Property and assumption of this Loan (hereinafter, an "ASSUMPTION") in its entirety prohibited by the foregoing may be permitted no more than twice during the term of the Note to any person or entity, subject to Lender's prior written consent, which shall not be unreasonably withheld or delayed, provided that each of the following terms and conditions are satisfied:
(i) no default has occurred and is then continuing hereunder or under any of the Loan Documents;
(ii) Borrower gives Lender written notice of the terms of such prospective Assumption not less than sixty (60) days before the date on which such Assumption is scheduled to take place and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Loan (hereinafter, a "TRANSFEREE") as Lender would reasonably require in evaluating an initial extension of credit to a borrower on a non-recourse basis. Lender shall have the right at any time to Transfer all approve or disapprove the proposed Transferee. In determining whether to give or withhold its approval of the Individual Properties proposed Transferee, Lender shall consider the Transferee's experience in one transaction owning and operating a facility similar to another party (the “Property, the Transferee”) and such Transferee may assume 's entity structure, the LoanTransferee's financial strength, provided no Event of Default exists or would result therefrom the Transferee's general business standing and the following Transferee's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based upon what Lender determines to be commercially reasonable in Lender's sole discretion and, if given, may be given subject to such conditions are met:as Lender may deem appropriate, but no such conditions shall result in an increase in the interest rate or monthly payment under the Note or reduce the term thereof;
(aiii) Borrowers Borrower shall pay to Lender (A) in connection with such proposed Assumption, all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees incurred by Lender, plus (B) concurrently with the closing of such Assumption, a transfer nonrefundable assumption fee in the an amount of 0.5equal to 1% of the sum then outstanding principal balance of the Principal Indebtedness and Unfunded Future AdvancesNote at the time of such Assumption;
(biv) the identity, experience, financial condition, creditworthiness, single purpose nature Transferee assumes and bankruptcy remoteness agrees to pay the Indebtedness and perform the Obligations secured hereby subject to Paragraph 11 of the TransfereeNote, and prior to or concurrently with the replacement guarantors closing of such Assumption, the Transferee executes, without any cost or expense to Lender, such documents and indemnitors agreements as Lender shall be reasonably satisfactory require to evidence and effectuate said assumption and deliver such legal opinions as Lender may reasonably require;
(v) transferee executes, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(cvi) BorrowersBorrower delivers to Lender, Transfereewithout any cost or expense to Lender, Guarantor hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the replacement guarantors time of the Assumption, all in form and indemnitors shall execute substance satisfactory to Lender, including, without limitation, an endorsement or endorsements to Lender's loan title insurance policy insuring the lien of this Mortgage, extending the effective date of such policy to the date of execution and deliver any and all documentation as may be reasonably required delivery of the assumption agreement referenced above in subparagraph 15(c)(iv), with no additional exceptions added to such policy, except for items consented to by Lender or required permitted under this Mortgage, and insuring that fee simple title to the Property is vested in the Transferee;
(vii) Borrower executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the Rating Agenciesother security documents through and including the date of the closing of the Assumption, which agreement shall be in form and substance satisfactory to Lender and shall be binding upon the Transferee;
(viii) subject to the provisions of Paragraph 11 of the Note, such Assumption is not construed so as to relieve Borrower of any personal liability under the Note or any of the Loan Documents for any act or events occurring or obligations arising prior to or simultaneously with the closing of such Assumption (excluding payment of the principal amount of the Note and interest accrued thereon) and Borrower executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of such personal liability;
(ix) the Transferee or a party associated with the Transferee approved by Lender in its sole discretion shall assume the obligations of the current Guarantors or Indemnitors under their guarantees or indemnity agreements and the Transferee or such party associated with the Transferee if applicable, shall execute, without any cost or expense to Lender, a new guarantee and/or indemnity agreement in form and substance satisfactory to Lender, (in which event Lender shall release the current Guarantors or Indemnitors from all obligations first arising under their guarantees or indemnity agreements after the closing of such Assumption);
(x) the Transferee shall furnish, if the Transferee is a corporation, partnership or other entity, all appropriate papers evidencing the Transferee's capacity in good standing and the qualification of the signers to execute the assumption of the Obligations, which paper shall include certified copies of all documents relating to the organization and formation of the Transferee and of the entities, if any, which are partners, members or shareholders of the Transferee. The Transferee and such constituent partners, members or shareholders of the Transferee (as the case may be) as Lender shall require, in form shall be single purpose, bankruptcy remote entities, whose formation documents shall be approved by counsel to Lender. An individual recommended by Transferee and substance reasonably satisfactory to approved by Lender shall serve as an independent director of the Transferee (if the Transferee is a corporation) or satisfactory to the Rating Agencies, as the case may be, Transferee's corporate general partner or an independent member or in Lender’s reasonable discretion or the Rating Agencies’ 's discretion, as applicable (including assumption documents)manager of Transferee if the Transferee is a limited liability company. The consent of such independent parties shall be required for, among other things, any merger, consolidation, dissolution, bankruptcy or insolvency of such independent party or of the Transferee;
(dxi) the Transferee shall assume the obligations of Borrower under the management agreements, if any, pertaining to the Property; and
(xii) the Transferee shall furnish an opinion of counsel to Transferee and the replacement guarantors and indemnitors shall deliver to Lender and the Rating Agencies customary opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance reasonably satisfactory to Lender and satisfactory to its counsel stating that (A) the Rating Agencies Transferee's formation documents provide proof for the matters described in Lender’s reasonable discretion subparagraph (x) above, (B) the assets of the Borrower will not be consolidated with the assets of any other entity having an interest in, or affiliation with, the Transferee, in the event of a bankruptcy or insolvency of any such entity, (C) the assumption of the Obligations has been duly authorized, executed and delivered and the Rating Agencies’ discretion Loan Documents are valid, binding and enforceable against the Transferee in accordance with customary qualifications their terms, (D) the Transferee and assumptions;
(e) if the Individual Property any entity which is transferreda controlling stockholder, Borrower shall deliver (general partner or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity managing member of the vestee Transferee have been duly organized and the execution are in good standing and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording feesexistence, and all fees payable (E) with respect to the applicable title company for the delivery to such other matters as Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%may request; and
(hxiii) if the Loan has previously been securitized pursuant to Paragraph 43 Lender shall have received evidence in writing from the rating agencies to the effect the proposed transfer will not result in a Rating Agency Confirmation downgrade, qualification reduction or withdrawal or any rating initially assigned or to be assigned in a Secondary Market Transaction. For purposes hereof, a "Secondary Market Transaction" shall be (i) any sale of this Mortgage, Note and Loan Documents to one or more investors as a whole loan; (ii) a participation of the Note to one or more investors; (iii) any deposit of this Mortgage, Note and Loan Documents with respect a trust or other entity which may sell certificates or other instruments to investors evidencing an ownership interest in the assets of such Transfertrust or other entity, or (iv) any other sale or transfer of the Note or any interest therein to one or more investors.
Appears in 1 contract
Assumption. Borrowers shall have (a) On the right at any time terms and subject to Transfer the conditions set forth in the Asset Purchase Agreement, the Ancillary Agreements and the Sale Order, and for good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, as of the Effective Time, each of the Sellers hereby assigns, sells, transfers and sets over all of such Seller’s right, title, benefit, privileges and interest in and to and all of such Seller’s burdens, obligations and liabilities in connection with, and Intelsat LLC hereby accepts, assumes and agrees to observe and perform all of the Individual Properties in one transaction duties, obligations, terms, provisions and covenants, and to another party (the “Transferee”) pay and such Transferee may assume the Loan, provided no Event of Default exists or would result therefrom and the following conditions are met:
(a) Borrowers shall pay to Lender a transfer fee in the amount of 0.5% discharge all of the sum liabilities of the Principal Indebtedness Sellers to be observed, performed, paid or discharged on and Unfunded Future Advances;after the Closing Date in connection with, the Assumed Liabilities related to the Purchased Assets set forth on Annex A hereto.
(b) On the identityterms and subject to the conditions set forth in the Asset Purchase Agreement, experiencethe Ancillary Agreements and the Sale Order, financial conditionand for good and valuable consideration, creditworthinessthe receipt, single purpose nature adequacy and bankruptcy remoteness legal sufficiency of which are hereby acknowledged, as of the TransfereeEffective Time, each of the Sellers hereby assigns, sells, transfers and sets over all of such Seller’s right, title, benefit, privileges and interest in and to and all of such Seller’s burdens, obligations and liabilities in connection with, and USA Sales hereby accepts, assumes and agrees to observe and perform all of the replacement guarantors duties, obligations, terms, provisions and indemnitors shall covenants, and to pay and discharge all of the liabilities of the Sellers to be reasonably satisfactory observed, performed, paid or discharged on and after the Closing Date in connection with, the Assumed Liabilities related to Lender;the Purchased Assets set forth on Annex C hereto.
(c) BorrowersOn the terms and subject to the conditions set forth in the Asset Purchase Agreement, Transferee, Guarantor the Ancillary Agreements and the replacement guarantors Sale Order, and indemnitors shall execute for good and deliver any valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, as of the Effective Time, each of the Sellers hereby assigns, sells, transfers and sets over all of such Seller’s right, title, benefit, privileges and interest in and to and all documentation as may of such Seller’s burdens, obligations and liabilities in connection with, and iGov hereby accepts, assumes and agrees to observe and perform all of the duties, obligations, terms, provisions and covenants, and to pay and discharge all of the liabilities of the Sellers to be reasonably required by Lender observed, performed, paid or required by discharged on and after the Rating AgenciesClosing Date in connection with, as the case may be, in form and substance reasonably satisfactory to Lender or satisfactory Assumed Liabilities related to the Rating Agencies, as the case may be, in Lender’s reasonable discretion or the Rating Agencies’ discretion, as applicable (including assumption documents);Purchased Assets set forth on Annex E hereto.
(d) counsel On the terms and subject to Transferee the conditions set forth in the Asset Purchase Agreement, the Ancillary Agreements and the replacement guarantors Sale Order, and indemnitors shall deliver for good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, as of the Effective Time, each of the Sellers hereby assigns, sells, transfers and sets over all of such Seller’s right, title, benefit, privileges and interest in and to Lender and all of such Seller’s burdens, obligations and liabilities in connection with, and the Rating Agencies customary opinion letters relating Purchaser hereby accepts, assumes and agrees to such transfer (including tax observe and bankruptcy opinions) perform all of the duties, obligations, terms, provisions and covenants, and to pay and discharge all of the liabilities of the Sellers to be observed, performed, paid or discharged on and after the Closing Date in form and substance reasonably satisfactory to Lender and satisfactory to connection with, the Rating Agencies Assumed Liabilities, if any, not otherwise assumed by an Affiliate of the Purchaser as provided for in Lender’s reasonable discretion and the Rating Agencies’ discretion with customary qualifications and assumptions;this Section 3.
(e) if the Individual Property is transferred, Borrower The Intelsat Parties shall deliver (not assume or cause to be delivered) to Lender, an endorsement to Lender’s title insurance policy relating to the change in the identity discharge any of the vestee and Excluded Liabilities, which shall be retained by the execution and delivery of the transfer documentation in form and substance reasonably acceptable to Lender;
(f) Borrower pays all reasonable expenses incurred by Lender in connection with such Transfer, including Lender’s reasonable attorneys fees and expenses, all recording fees, and all fees payable to the applicable title company for the delivery to Lender of the endorsement referred to in clause (e) above;
(g) the Loan-to-Value Ratio shall not exceed 80%; and
(h) Lender shall have received a Rating Agency Confirmation with respect to such TransferSellers.
Appears in 1 contract
Sources: Bill of Sale and Assignment and Assumption Agreement (Intelsat LTD)