Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied: (a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer; (b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement); (c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs); (d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer; (f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender; (g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender; (h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof; (i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender; (j) intentionally omitted; (k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request; (l) if required by Lender, Lender shall receive a Rating Agency Confirmation; (m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender; (n) intentionally omitted; (o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and (p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 4 contracts
Sources: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicableProperties; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Properties, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(ji) intentionally omitted;
(kj) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lk) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(ml) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (iii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(om) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement;
(n) the Junior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee’s equity owners described in Section 7.4(m) above, in accordance with the Junior Mezzanine Loan Agreement; and
(po) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral Properties in its their entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the CollateralProperties. Upon the Transfer of the Collateral Properties pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 4 contracts
Sources: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty thirty (6030) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$25,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to zero percent (0.0%) with respect to the first such assumption, and with respect to each subsequent assumption, one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Borrower or Transferee shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem reasonably necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, subject to customary qualifications acceptable to Lender in connection with the closing of the Loan, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(mk) if Borrower expects to transfer the Property subject to the extent the Permitted Transfer is a Transfer of all of the PropertiesLoan, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) then Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferProperty.
Appears in 4 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Mortgage Loan by any Person, or (CB) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, and (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Mortgage Borrower owned by Borrower or otherwise hold any ownership interest in any entities that own any Property (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Junior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Junior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 3 contracts
Sources: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any a "TRANSFEREE") and Lender shall release Borrower and Borrower Principal from their obligations under the Loan (to the extent such Person shall be hereinafter referred to as a “Transferee”) obligations arise from events occurring after the date of the assumption), provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, $10,000 (which information fee shall include, without limitation, a fully executed copy of be credited against the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transferassumption fee payable in connection with such assumption). Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s 's and its principals’ ' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the NoteNote (subject to credit for any previously paid non-refundable processing fees), and (ii) all out of reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency ' fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender's Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ 's organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s 's formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s 's obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) in the event a substantive non-consolidation opinion was delivered to Lender in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a new or updated substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer transfer of the CollateralProperty. Upon Notwithstanding anything to the Transfer contrary contained in this Section 7.5, prior to a Securitization Lender's consent to any transfer of the Collateral Property and assumption of the Loan pursuant to this Section 7.4, 7.5 shall not be required if the consideration to be paid to Borrower and Guarantor (if a by the proposed Transferee Principal has assumed is less than the obligations appraised value of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferProperty as determined by Lender.
Appears in 3 contracts
Sources: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Mortgage Loan by any Person, or (CB) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, and (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Mortgage Borrower owned by Borrower or otherwise hold any ownership interest in any entities that own any Property (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreementintentionally omitted; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 2 contracts
Sources: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender The Company shall not unreasonably withhold consent enter into or be party to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided Major Transaction that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether treated as an Assumption pursuant to give or withhold its approval of Section 5(c)(i), unless the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals Successor Entity assumes in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume writing all of the obligations of Mortgage Borrower the Company under this Warrant, the Facility Agreement (and any notes issued thereunder) and provides registration rights comparable to those provided to the initial Holder under the Mortgage Loan Documents Investor Rights Agreement, in a manner reasonably satisfactory accordance with the provisions of this Section (ii) (an “Assumption”) pursuant to Lender in all respects, including, without limitation, by entering into an assumption agreement written agreements and instruments (“Assumption Agreements”) necessary to effect such Assumption in form and substance reasonably satisfactory to Lender; the Required Holders and approved by the Required Holders prior to such Major Transaction (B) such consents and approvals not to be unreasonably withheld or delayed), including the delivery to each holder of Warrants in exchange for such Warrants a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the extent Warrants (the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects“Successor Warrant”), including, without limitation, representing the appropriate number of shares of the Successor Entity having the exercise rights contained herein (including but not limited to the prevailing aggregate Exercise Price at such time and underlying number and type of securities, based on the price per share or conversion ratio to be received by entering into an assumption agreement the holders of Shares in form the Major Transaction) and substance containing the other rights set forth herein, in each case, reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such TransferRequired Holders; provided, however, Guarantor that the Facility Agreement and any notes issued thereunder shall bear not be required as Assumption Agreements in the burden of proof to show that an event triggering liability of Guarantor the Company has prepaid all outstanding indebtedness (and all accrued interest) owed under the Guaranty first occurred after the Transfer Facility Agreement. The provisions of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event this Section shall any Transferee Principal be required apply similarly and equally to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, successive Major Transactions and shall authorize Lender be applied without regard to file, new financing statements and financing statement amendments any limitations on the exercise of this Warrant including any applicable ownership limitations. The Company shall not effect a Major Transaction that is being treated as an Assumption unless the Successor Warrant and other documents Assumption Agreements are issued and delivered to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee Holder in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under provisions hereof concurrently with the purchase consummation of such Major Transaction and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms such issuance and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) delivery shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date an express written condition precedent to consummation of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferMajor Transaction.
Appears in 2 contracts
Sources: Facility Agreement (Kempharm, Inc), Warrant Agreement (Kempharm, Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from after the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties Property in their its entirety or one hundred percent (100%) of the ownership interests in Borrower to, and the assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “"Transferee”") provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall (i) deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the TransferTransfer and (ii) pay to Lender a non-refundable processing fee in the amount of $15,000. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s 's on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s 's and its principals’ ' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the NoteNote for the first such Transfer, and one percent (1.0%) of the then outstanding principal balance of the Note for each subsequent such Transfer, and (ii) all out of reasonable out-of-pocket costs and expenses, including reasonable attorneys’ ' fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “"Transferee Principal”") shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender's Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ 's organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) If a Management Agreement has been entered into pursuant to the extent the Permitted Transfer is a Transfer of all of the Propertiesterms hereof, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment assignment and subordination of Management management agreement and consent of manager or similar agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall assume the obligations of Borrower under any Deposit Account Control Agreement or provide a new Deposit Account Control Agreement with a new Deposit Bank in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by the Lender, a REMIC Opinion, a New Non-Consolidation Opinion, Opinion and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s 's formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lk) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pl) Borrower’s 's obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral Property in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the CollateralProperty. Upon the Transfer of the Collateral Property pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 2 contracts
Sources: Loan Agreement (MVP REIT, Inc.), Loan Agreement (MVP REIT II, Inc.)
Assumption. Notwithstanding anything to the foregoing provisions contrary contained in Section 5.2.10 of this Article 7, following the date which is six (6) months from the Closing DateAgreement, Lender shall not unreasonably withhold its consent to (A) a Transfer one-time sale, assignment, or other transfer of the Properties Properties, in their entirety and the assumption entirety, provided that (a) Lender receives thirty (30) days prior written notice of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Personsuch transfer, (Bb) a Transfer no Event of Default has occurred and is continuing and (c) upon the Senior Mezzanine Collateral and assumption satisfaction (in the reasonable determination of the Senior Mezzanine Loan and the entire Loan by any Person, or (CLender) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfiedconditions:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(db) to the extent the Permitted Transfer is The proposed transferee (“Transferee”) shall be a Transfer of all of the Properties, Qualified Transferee or wholly owned and controlled by a Qualified Transferee;
(c) Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Note, the Security Instruments, this Agreement and the other Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fd) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal RequirementsApplicable Law, and shall execute any additional documents reasonably requested by Lender;
(ge) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple and/or leasehold title to the Collateral are Properties, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance reasonably satisfactory to Lender;
(hf) Transferee shall furnish have furnished to Lender, Lender all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 Section 4.1.35 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(kg) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A1) that Transferee’s formation documents provide for the matters described in subparagraph (hf) above, (B2) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Security Instruments, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C3) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, (4) with respect to the substantive non-consolidation of Transferee and its constituent entities (Dpartners, members or shareholders)and (5) with respect to such other matters as Lender may reasonably request;
(lh) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to All of the extent the Permitted Transfer is a Transfer of Operating Leases and all of the Properties, Transferee Qualified Assignee Leases shall assume remain in full force and effect during and after the obligations completion of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners transfer without abatement of the Transferee in accordance with the Senior Mezzanine Loan Agreementrent; and
(pi) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) Property shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of managed by a Qualified Manager following such transfer.
Appears in 2 contracts
Sources: Loan Agreement (Spirit Finance Corp), Loan Agreement (Spirit Finance Corp)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent Borrower may transfer the Property in its entirety to or of one hundred percent (A100%) a Transfer of the Properties ownership interests in their entirety the Borrower, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) shall be permitted with the prior written consent of the Lender, such consent not to be unreasonably withheld provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty thirty (6030) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non‑refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld, conditioned or delayed. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting . In no event shall Lender consent to a proposed transfer prior to a Securitization if the foregoingconsideration to be paid by the Transferee for the Property, all as determined by Lender in its sole discretion, is less than the appraised value of the direct or indirect ownership interests in Property as determined by Lender based upon the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged Appraisal delivered to Lender on terms no less favorable than the pledge in connection with Lender’s underwriting of the Collateral under the Pledge Agreement)Loan;
(c) Borrower or Transferee shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non refundable non‑refundable assumption fee in an amount equal to one-half one quarter of one percent (0.50.25%) of the then outstanding principal balance of the Note, and (ii) all out of pocket out‑of‑pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall have assumed and agreed to pay (A) if such Permitted Transfer is the Debt as and when due or (B) with respect to a Transfer Partial Assumption, the portion of the Properties, assume and agree Debt attributable to pay the Debt (as defined in the Mortgage Loan Agreement) Assumed Note as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreementhave either, as applicable, (BY) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume assumed all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof or (Z) with respect to any Partial Assumption, executed a joinder or other documentation required by Lender in Lender’s sole discretion to bind such transferee as a co-borrower under the terms of this Agreement and the other Loan Documents, and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumptionassumption or such Partial Assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, as applicable and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof, including any amendments thereto that may be required by the Rating Agencies in order to comply with their then-current criteria;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Community Operations Agreement or provide a new management agreement with a new manager Qualified Manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Community Operations Agreement in form and substance reasonably satisfactory to on the Lender’s then-current form;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) Transferee shall, prior to such transfer, deliver a substantive non‑consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to the Rating Agencies and reasonably acceptable to Lender. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety or one hundred percent (100%) of the ownership interests in Borrower to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor Borrower Principal (if a Transferee Principal has assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.47.5) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer. All out‑of‑pocket costs and expenses incurred by Lender pursuant to this Section 7.5 shall be payable by Borrower whether or not the transfer contemplated hereunder actually occurs. In connection with an Assumption, Lender may condition its consent upon the related transferee agreeing to (a) make additional deposits into the Reserve Accounts or to require deposits to the Replacement Reserve Account at all times, and/or (b) the related transferee establishing such additional reserves with Lender as Lender may require in its reasonable discretion; provided, however, the such deposits or additional reserves shall be determined by Lender based upon its standard underwriting criteria and the amounts shall be computed in accordance with the provisions set forth in Article 9 hereof.
Appears in 2 contracts
Sources: Loan Agreement (Sun Communities Inc), Loan Agreement (Sun Communities Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty thirty (6030) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$25,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to zero percent (0.0%) with respect to the first such assumption, and with respect to each subsequent assumption, one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Borrower or Transferee shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem reasonably necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, subject to customary qualifications acceptable to Lender in connection with the closing of the Loan, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(mk) if Borrower expects to transfer the Property subject to the extent the Permitted Transfer is a Transfer of all of the PropertiesLoan, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) then Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer transfer of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor (if a Transferee Borrower Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicableProperties; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Properties, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(ji) intentionally omitted;
(kj) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lk) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(ml) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (iii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(om) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement;
(n) [intentionally omitted]; and
(po) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral Properties in its their entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the CollateralProperties. Upon the Transfer of the Collateral Properties pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 2 contracts
Sources: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7VII, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit$5,000 (provided, which information that, Borrower shall includenot be required to pay any processing fee in connection with the first request for approval of a Loan assumption pursuant to this Section 7.05).
(c) Borrower shall have obtained Lender’s prior written approval, without limitationsuch approval not to be unreasonably withheld, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereofprovided, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. that, Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business and credit standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting . Lender may withhold its consent to any proposed transfer occurring prior to a Securitization if the foregoing, all of the direct or indirect ownership interests in consideration to be paid by the Transferee, as applicabledetermined by Lender, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no is less favorable than the pledge appraised value of the Collateral under the Pledge AgreementProperty (as adjusted as a result of any Property Releases);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred as determined by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all Lender’s underwriting of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferLoan.
Appears in 2 contracts
Sources: Loan Agreement (Bon Ton Stores Inc), Loan Agreement (Bon Ton Stores Inc)
Assumption. Notwithstanding anything to the foregoing provisions of contrary contained in this Article 7Agreement or any other Loan Document, following at any time from and after the date which is six (6) months from the Closing Signing Date, Lender shall not unreasonably withhold consent to (A) a Transfer at the option of the Properties in their entirety Initial Borrower and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) upon no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver less than five Business Days’ prior written notice to Lender the Administrative Agent, the Initial Borrower may, without the consent of the terms Administrative Agent, any Lender or any other party hereto, in its sole discretion, assign and novate its obligations under this Agreement to a Wholly Owned Subsidiary of such proposed Transfer not less than sixty (60X) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating prior to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesSpinoff Date, the financial strength Initial Borrower or (Y) from and after the Spinoff Date, Parent, in each case organized under the laws of Transferee England and Wales to whom the Initial Borrower has transferred or intends to promptly commence transferring all or substantially all of its principalsassets (such date, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors“Borrower Transfer Date”), vendors, tenants, lenders and other business entities; provided, however, provided 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) such Wholly Owned Subsidiary shall expressly assume the obligations of the then outstanding principal balance of Initial Borrower pursuant to the NoteBorrower Assumption Agreement, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which such Wholly Owned Subsidiary shall cause to be paid whether or not the proposed Transfer actually occurs);
(d) delivered to the extent Administrative Agent legal opinions substantially consistent with those delivered on the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) Closing Date with respect to the extent Initial Borrower as to such matters as are reasonably requested by the Permitted Transfer is a Transfer of all of Administrative Agent, (iii) the Senior Mezzanine CollateralAdministrative Agent shall have received, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and at least three (C3) Business Days prior to the extent the Permitted Borrower Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitationDate, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents documentation and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments other information required with respect to such ownership interests Wholly Owned Subsidiary by regulatory authorities under applicable “know your customer” and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lenderanti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and (iiiv) if such Wholly Owned Subsidiary shall have satisfied the Collateral and Guarantee Requirement and delivered such Security Documents or joinders thereto as are required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 2 contracts
Sources: Credit Agreement (Johnson Controls Inc), Credit Agreement (Adient LTD)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”"TRANSFEREE") and release of Borrower of its obligations under the Loan provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty forty-five (6045) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s 's and its principals’ ' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency ' fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender's Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ 's organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s 's formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Deed of Trust, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;, including, without limitation, customary single member limited liability company opinions; and,
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s 's obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferProperty.
Appears in 2 contracts
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7Paragraph 15, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer sale of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral Property and assumption of this Loan (hereinafter, an “Assumption”) in its entirety prohibited by the Senior Mezzanine Loan and foregoing may be permitted no more than once during the entire Loan by any Person, or (C) a Transfer term of the Collateral and assumption of the entire Loan by Note to any Person (any such Person person or entity, subject to Beneficiary’s prior written consent, which shall not be hereinafter referred to as a “Transferee”) unreasonably withheld or delayed, provided that each of the following terms and conditions are satisfied:
(ai) no Event of Default shall be default has occurred and is then continuing at the time the notice in clause (b) below is received by Lender hereunder or at the time under any of the TransferLoan Documents;
(bii) Borrower shall deliver Grantor gives Beneficiary written notice to Lender of the terms of such proposed Transfer prospective Assumption not less than sixty (60) days before the date on which such Transfer Assumption is scheduled to close take place and, concurrently therewith, gives Beneficiary all such information concerning the proposed Transfer and Transferee transferee of the Loan (hereinafter, a “Transferee”) as Lender shall Beneficiary would reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, credit to a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transferborrower on a non-recourse basis. Lender Beneficiary shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheldTransferee. In determining whether to give or withhold its approval of the proposed TransferTransferee, Lender Beneficiary shall consider the Transferee’s experience and track record of Transferee and its principals in owning and operating facilities a facility similar to the PropertiesProperty, the financial strength of Transferee and its principalsTransferee’s entity structure, the Transferee’s financial strength, the Transferee’s general business standing of Transferee and its principals and the Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, that notwithstanding LenderBeneficiary’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on upon what Lender Beneficiary determines to be commercially reasonable in Beneficiary’s sole discretion and, if given, may be given subject to such conditions as Lender Beneficiary may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests but no such conditions shall result in an increase in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral interest rate or monthly payment under the Pledge Agreement)Note or reduce the term thereof;
(ciii) Borrower Grantor shall pay to LenderBeneficiary (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 proposed TransferAssumption, (i) a non refundable nonrefundable assumption fee in an amount equal to one-half of one percent (0.5%) 1% of the then outstanding principal balance of the Note at the time of such Assumption;
(iv) the Transferee assumes and agrees to pay the Indebtedness and perform the Obligations secured hereby subject to Paragraph 11 of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such TransferAssumption, the Transferee executes, without any cost or expense to Beneficiary, such documents and its constituent partnersagreements as Beneficiary shall reasonably require to evidence and effectuate said assumption and deliver such legal opinions as Beneficiary may reasonably require;
(v) Transferee executes, members without any cost or shareholders 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 Lender Beneficiary may requiredeem necessary at the time of the Assumption, includingall in form and substance satisfactory to Beneficiary, including without limitation, all 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 entities which own interests similar 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 interests Property is vested in Senior Mezzanine Borrower owned 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 Borrower 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 “Mezzanine Entities”)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 LenderBeneficiary, such documents and agreements as Lender Beneficiary shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge the ratification of each such guarantee and security indemnity agreement, whereby all of provided that if the direct ownership interests in all entities owned Transferee or a party associated with the Transferee approved by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume Beneficiary in its sole discretion assumes the obligations of Guarantor the current Guarantors and Indemnitors under the Loan Documents with respect to all acts and events occurring their guarantees or arising after the closing of the Transfer indemnity agreements and the then existing Guarantor shall be released under Transferee or such party associated with the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; providedTransferee if applicable, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lenderexecutes, without any cost or expense to LenderBeneficiary, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all new guarantee and/or indemnity agreement in form and substance satisfactory to LenderBeneficiary, 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;
(hx) The Transferee shall furnish to Lenderfurnish, if the Transferee is a corporation, partnership or other entity, all documents appropriate papers evidencing the Transferee’s and Mezzanine Entities’ organization and capacity in good standing, standing and the qualification of the signers to execute the assumption of the DebtObligations, which documents 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 partners, members or members shareholders of the Transferee. The Transferee and such constituent partners, members or shareholders of the Transferee (as the case may be), ) as Lender Beneficiary shall require, shall comply with be single purpose, bankruptcy remote entities, whose formation documents shall be approved by counsel to Beneficiary. An individual recommended by Transferee and approved by Beneficiary shall serve as an independent director of the covenants set forth Transferee (if the Transferee is a corporation) or the Transferee’s corporate general partner or an independent member or in Article 6 hereofBeneficiary’s discretion, 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;
(ixi) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee Grantor under any Management Agreement or provide a new the management agreement with a new manager which meets with agreements, if any, pertaining to the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to LenderProperty;
(jxii) intentionally omitted;
(k) the Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender Beneficiary and its counsel stating that (A) that the Transferee’s formation documents provide proof for the matters described in subparagraph (hx) above, (B) that the assets of the Grantor 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 Debt Obligations has been duly authorized, executed and delivered, and that the assumption agreement delivered and the other Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (CD) that the Transferee and any entity which is a controlling stockholder, member or general partner or managing member of Transferee, the Transferee have been duly organized, organized and are in existence good standing and good standingin existence, and (DE) with respect to such other matters as Lender Beneficiary may reasonably request;; and
(lxiii) if required by Lender, Lender the Loan has previously been securitized pursuant to Paragraph 44 Beneficiary shall receive a Rating Agency Confirmation;
(m) have received evidence in writing from the rating agencies to the extent effect the Permitted Transfer is proposed transfer will not result in a Transfer of all of the Propertiesdowngrade, Transferee 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 assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into be (i) any sale of the Deed of Trust, Note and Loan Documents to one or more investors as a Replacement Franchise Agreement with a Qualified Franchisor and whole loan; (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners participation of the Transferee Note to one or more investors; (iii) any deposit of this Deed of Trust, Note and Loan Documents with a trust or other entity which may sell certificates or other instruments to investors evidencing an ownership interest in accordance with the Senior Mezzanine Loan Agreement; and
assets of such trust or other entity, or (piv) Borrower’s obligations under the purchase and any other sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction or transfer of the terms and conditions of this Section 7.4. The consent of Lender with respect Note or any interest therein to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, one or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfermore 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. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhay occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty forty-five (6045) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred inclined by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee Property pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.7.5;
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following Borrower shall have the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent right to (A) cause a Transfer Sale or Pledge of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”"TRANSFEREE") provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective Sale or Pledge not less than sixty (60) days before the date on which such Transfer Sale or Pledge is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit$25,000. Unless the proposed Sale or Pledge of the Property is to a Qualified Transferee, (i) if the proposed Sale or Pledge is prior to a Securitization, the proposed Sale or Pledge is subject to, among other things, the prior written consent of Lender, which information shall includenot be unreasonably withheld, without limitationconditioned or delayed or (ii) if the proposed Sale or Pledge is after a Securitization, the proposed Sale or Pledge is subject to, among other things, the receipt of written confirmation from the Rating Agencies that the Prohibited Transfer will not result in a fully executed copy downgrade, withdrawal or qualification of the purchase and sale agreement and all amendments and assignments thereofinitial, as well as or if higher, then current ratings issued in connection with a Securitization. In connection with the sources and uses of funds or closing or settlement statement relating to the Transfer. forgoing, if Lender shall have has the right to approve or disapprove the proposed Transfer Sale or Pledge it shall do so based on on, among other things, (i) its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider market and (ii) the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s 's and its principals’ ' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);.
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed TransferSale or Pledge, (i) a non non-refundable assumption fee in an amount equal to (1) $175,000 for the first such Sale or Pledge and related assumption and (2) one-half of one percent (0.5.5%) of the then outstanding original principal balance of the NoteNote for any subsequent Sale or Pledge and related assumption, and (ii) all out of reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency ' fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether Sale or not the proposed Transfer actually occurs)Pledge;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such TransferSale or Pledge, Transferee and its constituent partners, members or shareholders as Lender may a prudent institutional mortgage lender would reasonably require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall a prudent institutional mortgage lender would reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information would be reasonably requested by Lender an institutional mortgage lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents which would be reasonably requested by Lendera prudent institutional mortgage lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender's Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may reasonably deem necessary at the time of the transferSale or Pledge, all in form and substance reasonably satisfactory to Lendera prudent institutional mortgage lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ 's organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall a prudent institutional mortgage lender would reasonably require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel reasonably satisfactory to Lender a prudent institutional mortgage lender and its counsel (A) that Transferee’s 's formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold Lender’s consent to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the PropertiesProperty (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 assume pay any and all of the obligations of Mortgage Borrower under the Mortgage Loan Documents reasonable actual out‑of‑pocket costs incurred by Lender or Servicer in a manner reasonably satisfactory to Lender in all respects, connection with such Transfer (including, without limitation, by entering into an assumption agreement in form Lender’s reasonable counsel fees and substance reasonably satisfactory disbursements, all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to Lender; clause (Bx) below), it being acknowledged and agreed that Borrower shall have this obligation even if the transaction is not consummated;
(iii) the Persons proposed to take title to the extent Property (the Permitted Transfer is a Transfer “Transferee”), the Person that Controls the Transferee (the “Transferee’s Sponsor”) or any other direct or indirect owner of all 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 Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and proposed Transfer;
(Cvi) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, from and after the effective date of such transfer as evidenced by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(ivii) 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 and SPE Component Entity, if any, shall (A) if such Permitted Transfer is a Transfer satisfy all the representations and covenants set forth in Sections 3.7, 3.29 and 3.32 of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan this Agreement, (B) if such Permitted Transfer is no Event of Default shall occur as a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing result of such Transfer, and Transferee and its constituent partnersSPE Component Entity, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”)if any, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby deliver all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents organizational documentation reasonably requested by Lender;
(g) Transferee , which shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance be reasonably satisfactory to Lender;
(hx) if the Transfer described in this Section 6.4 occurs after a Securitization, Transferee and the assumption shall furnish 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 guaranty and environmental indemnity reasonably satisfactory to Lender, all documents evidencing and Lender receives any legal opinions of counsel reasonably required by Lender in connection therewith;
(xiii) Borrower or Transferee shall deliver, at Borrower’s or Transferee’s sole cost and Mezzanine Entities’ organization and good standingexpense, an endorsement to the Title Insurance Policy, which endorsement shall insure the Lien of the Security Instrument as modified by the assumption agreement, as a valid first lien on the Property, shall name the Transferee as owner of the Property, and the qualification shall insure that, as of the signers to execute 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 DebtQualified 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 shall include certified copies of all documents relating to the organization and formation of Transferee and of the entitiesSPE Component Entity, if any, shall include provisions which are partners or members shall cause each of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) them to the extent the Permitted Transfer is be a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with special purpose entity satisfying the requirements of Section 5.14 hereof Article 5 herein and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement shall otherwise be in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) . Immediately upon a Transfer to such Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion the satisfaction of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption all of the Debt has been duly authorizedabove requirements, executed the named Borrower and deliveredGuarantor herein shall be released from all liability under this Agreement, and that the assumption agreement Note, the Security Instrument, the Guaranty, Environmental Indemnity and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member arising or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to accruing after such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4Transfer. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) foregoing release shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after effective upon the date of such transferTransfer, except but Lender agrees to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of 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. Notwithstanding the foregoing provisions of this Article 76, following the date which is six one (61) months year from the Closing Date, provided such date is not within sixty (60) days of a Securitization of the Loan, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”"TRANSFEREE") provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty thirty (6030) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transferrequire. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s 's and its principals’ ' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-one half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ ' fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume have assumed all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 14 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such TransferDocuments;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender's Title Insurance Policy insuring that equity interests of all owners of fee simple to the Collateral are Property is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, Lender all appropriate documents evidencing Transferee’s and Mezzanine Entities’ 's organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 5 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 4.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion opinions of counsel satisfactory to Lender and its counsel (A) that Transferee’s 's formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Security Instrument, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholdershareholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received a Rating Agency ConfirmationRatings Confirmation in connection with the transfer;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s 's obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.46.5; and
(1) in the event an Insolvency Opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 6.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.46.5, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer. All expenses incurred by Lender pursuant to this Section 6.5 shall be payable by Borrower whether or not the transfer contemplated hereunder actually occurs.
Appears in 1 contract
Sources: Loan Agreement (Acadia Realty Trust)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold Lender’s consent to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the PropertiesProperty (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 assume pay any and all of the obligations of Mortgage Borrower under the Mortgage Loan Documents reasonable actual out-of-pocket costs incurred by Lender or Servicer in a manner reasonably satisfactory to Lender in all respects, connection with such Transfer (including, without limitation, by entering into an assumption agreement in form Lender’s reasonable counsel fees and substance reasonably satisfactory disbursements, all recording fees, title insurance premiums and mortgage and intangible taxes and the fees and expenses of the Rating Agencies pursuant to Lender; clause (Bx) below), it being acknowledged and agreed that Borrower shall have this obligation even if the transaction is not consummated;
(iii) the Persons proposed to take title to the extent Property (the Permitted Transfer is a Transfer “Transferee”), the Person that Controls the Transferee (the “Transferee’s Sponsor”) or any other direct or indirect owner of all 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 Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and proposed Transfer;
(Cvi) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, from and after the effective date of such transfer as evidenced by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(ivii) 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 and SPE Component Entity, if any, shall (A) if such Permitted Transfer is a Transfer satisfy all the representations and covenants set forth in Sections 3.7, 3.29 and 3.32 of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan this Agreement, (B) if such Permitted Transfer is no Event of Default shall occur as a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing result of such Transfer, and Transferee and its constituent partnersSPE Component Entity, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”)if any, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby deliver all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents organizational documentation reasonably requested by Lender;
(g) Transferee , which shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance be reasonably satisfactory to Lender;
(hx) if the Transfer described in this Section 6.4 occurs after a Securitization, Transferee and the assumption shall furnish 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 guaranty and environmental indemnity reasonably satisfactory to Lender, all documents evidencing and Lender receives any legal opinions of counsel reasonably required by Lender in connection therewith;
(xiii) Borrower or Transferee shall deliver, at Borrower’s or Transferee’s sole cost and Mezzanine Entities’ organization and good standingexpense, an endorsement to the Title Insurance Policy, which endorsement shall insure the Lien of the Security Instrument as modified by the assumption agreement, as a valid first lien on the Property, shall name the Transferee as owner of the Property, and the qualification shall insure that, as of the signers to execute 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 DebtQualified 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 shall include certified copies of all documents relating to the organization and formation of Transferee and of the entitiesSPE Component Entity, if any, shall include provisions which are partners or members shall cause each of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) them to the extent the Permitted Transfer is be a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with special purpose entity satisfying the requirements of Section 5.14 hereof Article 5 herein and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement shall otherwise be in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) . Immediately upon a Transfer to such Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion the satisfaction of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption all of the Debt has been duly authorizedabove requirements, executed the named Borrower and deliveredGuarantor herein shall be released from all liability under this Agreement, and that the assumption agreement Note, the Security Instrument, the Guaranty, Environmental Indemnity and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member arising or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to accruing after such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4Transfer. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) foregoing release shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after effective upon the date of such transferTransfer, except but Lender agrees to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of 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. Notwithstanding the foregoing provisions of this Article 7PARAGRAPH 15, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer sale of the Properties Property (provided there are no more than sixteen [16] Tenants in their entirety and Common at any one time in the assumption of the Loanaggregate, the Mortgage Loan and the Senior Mezzanine Loan by any Personincluding Grantor, (BTIME BEING OF THE ESSENCE in accordance with PARAGRAPH 15(D) a Transfer of the Senior Mezzanine Collateral BELOW and assumption of this Loan (hereinafter, an "ASSUMPTION") in its entirety prohibited by the Senior Mezzanine Loan and foregoing may be permitted during the entire Loan by any Person, or (C) a Transfer term of the Collateral and assumption of the entire Loan by Note to any Person (any such Person entity, subject to Beneficiary's prior written consent, which shall not be hereinafter referred to as a “Transferee”) unreasonably withheld or delayed, provided that each of the following terms and conditions are satisfied:
(ai) no Event of Default shall be continuing at the time the notice Grantor is in clause (b) below is received by Lender or at the time compliance with all terms and conditions of the TransferLoan 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;
(bii) Borrower shall deliver Grantor gives Beneficiary written notice to Lender of the terms of such proposed Transfer prospective Assumption not less than sixty (60) days before the date on which such Transfer Assumption is scheduled to close take place and, concurrently therewith, gives Beneficiary all such information concerning the proposed Transfer and Transferee as Lender shall Beneficiary reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transferrequests. Lender Beneficiary shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheldTransferee. In determining whether to give or withhold its approval of the proposed TransferTransferee, Lender Beneficiary shall consider the Transferee's experience and track record of Transferee and its principals in owning and operating facilities a facility similar to the PropertiesProperty, Transferee's entity structure, Transferee's financial strength, the financial strength of Transferee and its principals, the Transferee's general business standing of Transferee and its principals and Transferee’s and its principals’ relationships 's relationship 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(ciii) Borrower Grantor shall pay to LenderBeneficiary (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 proposed TransferAssumption, (i) a non refundable nonrefundable assumption fee in an amount equal to one-half of one percent (0.5%) 1% of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(iiv) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume executes and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, delivers such documents and agreements as Lender Beneficiary shall reasonably require to evidence and effectuate said assumptionassumption and delivers such legal opinions as Beneficiary may reasonably require, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring hazard insurance endorsements or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender Beneficiary may deem necessary at the time of the transferAssumption, all in form and substance satisfactory to LenderBeneficiary, 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 Property is vested in the Transferee;
(hv) 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;
(vi) subject to the provisions of PARAGRAPH 14 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;
(vii) Transferee shall furnish to Lenderfurnish, if Transferee is a corporation, partnership or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and 's capacity in good standing, standing and the qualification of the signers to execute the assumption of the DebtObligations, which documents paper shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners partners, members or members shareholders of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), ) as Lender Beneficiary shall require, shall comply with the covenants set forth in Article 6 hereof;be single purpose entities, whose formation documents shall be approved by counsel to Beneficiary; and
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(kviii) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender Beneficiary and its counsel stating that (A) that Transferee’s 's formation documents provide proof for the matters described in subparagraph SUBPARAGRAPH (hVII) above, (B) that 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 Debt Obligations has been duly authorized, executed and delivered, and that the assumption agreement delivered and the other Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (CD) that Transferee and any entity which is a controlling stockholder, member or general partner or managing member of Transferee, Transferee have been duly organized, organized and are in existence good standing and good standingin existence, and (DE) with respect to such other matters as Lender Beneficiary or any applicable rating agency may reasonably request;
(l) . 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 required Transferee or a party associated with Transferee approved by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume Beneficiary in its sole discretion assumes the obligations of Mortgage Borrower the current Guarantors under their guarantees or Operating Lessee under the Franchise Agreement indemnity agreements and Transferee or enter into (i) such party associated with Transferee if applicable, executes, without any cost or expense to Beneficiary, a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar new guarantee and/or indemnity agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) Beneficiary, then Beneficiary shall release the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s current Guarantors from all obligations first arising under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, their guarantees or circumstances occurring or arising indemnity agreements after the date closing of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.Assumption;
Appears in 1 contract
Sources: Deed of Trust, Security Agreement and Fixture Filing (NNN 2003 Value Fund LLC)
Assumption. Notwithstanding the foregoing provisions of this Article 7Paragraph 15, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer sale of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral Property and assumption of this Loan (hereinafter, an “Assumption”) in its entirety prohibited by the Senior Mezzanine Loan and foregoing may be permitted during the entire Loan by any Person, or (C) a Transfer term of the Collateral and assumption of the entire Loan by Note to any Person (any such Person entity, subject to Beneficiary’s prior written consent, which shall not be hereinafter referred to as a “Transferee”) unreasonably withheld or delayed, provided that each of the following terms and conditions are satisfied:
(ai) no Event of Default shall be continuing at the time the notice Grantor is in clause (b) below is received by Lender or at the time compliance with all terms and conditions of the TransferLoan 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;
(bii) Borrower shall deliver Grantor gives Beneficiary written notice to Lender of the terms of such proposed Transfer prospective Assumption not less than sixty forty-five (6045) days before the date on which such Transfer Assumption is scheduled to close take place and, concurrently therewith, gives Beneficiary all such information concerning the proposed Transfer and Transferee as Lender shall Beneficiary reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transferrequests. Lender Beneficiary shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheldTransferee. In determining whether to give or withhold its approval of the proposed TransferTransferee, Lender Beneficiary shall consider the Transferee’s experience and track record of Transferee and its principals in owning and operating facilities a facility similar to the PropertiesProperty, Transferee’s entity structure, Transferee’s financial strength, the financial strength of Transferee and its principals, the Transferee’s general business standing of Transferee and its principals and Transferee’s and its principals’ relationships relationship 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(ciii) Borrower Grantor shall pay to LenderBeneficiary (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 proposed TransferAssumption, (i) a non refundable nonrefundable assumption fee in an amount equal to one-half of one percent (0.5%) % of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(iiv) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume executes and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, delivers such documents and agreements as Lender Beneficiary shall reasonably require to evidence and effectuate said assumptionassumption and delivers such legal opinions as Beneficiary may reasonably require, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring hazard insurance endorsements or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender Beneficiary may deem necessary at the time of the transferAssumption, all in form and substance satisfactory to LenderBeneficiary, 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 Property is vested in the Transferee;
(hv) 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;
(vi) 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;
(vii) Transferee shall furnish to Lenderfurnish, if Transferee is a corporation, partnership or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and capacity in good standing, standing and the qualification of the signers to execute the assumption of the DebtObligations, which documents paper shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners partners, members or members shareholders of Transferee. Transferee and such constituent partners, members or shareholders of the Transferee (as the case may be), ) as Lender Beneficiary shall require, shall comply with 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 covenants set forth in Article 6 hereofTransferee;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(kviii) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender Beneficiary and its counsel stating that (A) that Transferee’s formation documents provide proof for the matters described in subparagraph (hvii) above, (B) that 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 Debt Obligations has been duly authorized, executed and delivered, and that the assumption agreement delivered and the other Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (CD) that Transferee and any entity which is a controlling stockholder, member or general partner or managing member of Transferee, Transferee have been duly organized, organized and are in existence good standing and good standingin existence, and (DE) with respect to such other matters as Lender Beneficiary or any applicable rating agency may reasonably request;; and
(lix) if required by Lenderthe Loan has previously been securitized pursuant to Paragraph 44, Lender Beneficiary shall receive a Rating Agency Confirmation;
(m) have received evidence in writing from the rating agencies to the extent effect the Permitted Transfer is proposed transfer will not result in a Transfer downgrade, qualification, reduction or withdrawal of all 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 PropertiesNote, provided that if Transferee shall assume or a party associated with Transferee approved by Beneficiary in its sole discretion assumes the obligations of Mortgage Borrower the current Guarantors under their guarantees or Operating Lessee under the Franchise Agreement indemnity agreements and Transferee or enter into (i) such party associated with Transferee if applicable, executes, without any cost or expense to Beneficiary, a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar new guarantee and/or indemnity agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) Beneficiary, then Beneficiary shall release the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s current Guarantors from all obligations first arising under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, their guarantees or circumstances occurring or arising indemnity agreements after the date closing of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.Assumption;
Appears in 1 contract
Sources: Leasehold Deed of Trust, Security Agreement and Fixture Filing (Maguire Properties Inc)
Assumption. Notwithstanding the foregoing provisions of this Article ARTICLE 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty forty-five (6045) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article ARTICLE 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned assumption by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such TransferTransferee;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of leasehold title to the Collateral are Property is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article ARTICLE 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive a have received confirmation in writing from the Rating Agency Confirmation;
(m) Agencies that rate the Securities to the extent effect that the Permitted Transfer is transfer will not result in a Transfer qualification, downgrade or withdrawal of all of any rating initially assigned or to be assigned to the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan AgreementSecurities; and
(pk) Borrower’s obligations under the purchase and contract of sale or assumption agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon Subject to the Transfer provisions of Sections 12.6, 14.4 and 15.1 hereof as to matters occurring or arising through and including the Collateral pursuant to date of an assumption, upon the occurrence of an assumption in accordance with the provisions of this Section 7.47.5, the Borrower and Guarantor (if a Transferee Principal has assumed the shall have no further obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising which arise after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferassumption.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an The initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender Obligor shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the TransfereeCollateral to a Qualified Successor Borrower that will, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently contemporaneously with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower Obligor hereunder and under the Mortgage other Loan Documents in a manner reasonably satisfactory (an “Assumption”), provided no Event of Default or material monetary Default is then continuing or would result therefrom and the following conditions are met to the reasonable satisfaction of Lender:
(i) such Qualified Successor Borrower shall have executed and delivered to Lender in all respects, including, without limitation, by entering into an assumption agreement (including an assumption of the Mortgage in recordable form, if requested by Lender), 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;
(ii) the obligations of Operating Lessee under the Operating Lease 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 Lender 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 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;
(Biii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iv) 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);
(v) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the extent opinions delivered to Lender on the Permitted Transfer is a Transfer of all of the Senior Mezzanine CollateralClosing Date, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner including new nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Obligor and the Qualified Successor Borrower shall have delivered such other documents, certificates and legal opinions, including relating to REMIC matters, 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 all respectsthis Section 2.2, including, without limitation, by entering into an assumption agreement each in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is , including a Transfer of all certified copy of the Collateralapplicable resolutions from all appropriate persons, Transferee shall assume all certified copies of the obligations organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower under the Loan Documents in issued as of a manner reasonably satisfactory to Lender in all respects, including, without limitationrecent date by its state of organization and each other state where such entity, by entering into an assumption agreement in form and substance reasonably satisfactory the nature of its business, is required to Lenderqualify or register;
(ivii) Transferee the Qualified Title Insurance Policy shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree have been properly endorsed to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after reflect the Transfer of the Properties or Property to the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such TransferQualified Successor Borrower;
(fviii) Borrower and Transferee, without any cost to Lender, the Rating Condition shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) satisfied with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all legal structure of the PropertiesQualified Successor Borrower, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners documentation of the Transferee in accordance with Assumption and the Senior Mezzanine Loan Agreementrelated legal opinions; and
(pix) Borrower’s obligations under the purchase and sale agreement pursuant Obligor shall have paid to which the Transfer is proposed Lender a nonrefundable assumption fee in an amount equal to occur shall expressly be subject to the satisfaction 1.0% of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety toPrincipal Indebtedness, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 Obligor shall not be construed to be a waiver of the right of have reimbursed Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower for its reasonable out-of-pocket costs and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of expenses incurred in connection with such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferassumption.
Appears in 1 contract
Assumption. Notwithstanding anything to the foregoing provisions of contrary contained in this Article 7Agreement or any other Loan Document, following at any time from and after the date which is six (6) months from the Closing Signing Date, Lender shall not unreasonably withhold consent to (A) a Transfer at the option of the Properties in their entirety Initial Borrower and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) upon no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver less than five Business Days’ prior written notice to Lender the Administrative Agent, the Initial Borrower may, without the consent of the terms Administrative Agent, any Lender or any other party hereto, in its sole discretion, assign and novate its obligations under this Agreement to a Wholly Owned Subsidiary of such proposed Transfer not less than sixty (60X) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating prior to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesSpinoff Date, the financial strength Initial Borrower or (Y) from and after the Spinoff Date, Parent, in each case organized under the laws of Transferee England and Wales to whom the Initial Borrower has transferred or intends to promptly commence transferring all or substantially all of its principalsassets (such date, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors“Borrower Transfer Date”), vendors, tenants, lenders and other business entities; provided, however, provided 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) such Wholly Owned Subsidiary shall expressly assume the obligations of the then outstanding principal balance of Initial Borrower pursuant to the NoteBorrower Assumption Agreement, and (ii) such Wholly Owned Subsidiary shall cause to be delivered to the Administrative Agent legal opinions substantially consistent with those delivered on the Closing Date with respect to the Initial Borrower as to such matters as are reasonably requested by the Administrative Agent, (iii) the Administrative Agent shall have received, at least three (3) Business Days prior to the Borrower Transfer Date, all out of pocket costs documentation and expensesother information required with respect to such Wholly Owned Subsidiary by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including reasonable attorneys’ fees without limitation the USA PATRIOT Act and disbursements (iv) such Wholly Owned Subsidiary shall have satisfied the Collateral and Rating Agency feesGuarantee Requirement and delivered such Security Documents or joinders thereto as are required by the Collateral and Guarantee Requirement. Adient Global Holdings Ltd will be automatically released from any obligations and liabilities (including the Loan Obligations) under this Agreement or any other Loan Document (in each case, incurred by Lender solely in connection with its capacity as the proposed Transfer Initial Borrower, a Borrower or as the Borrower Representative, and not in any other capacity (which shall be paid whether including as a Guarantor), unless on such date Adient Global Holdings Ltd is liquidated, dissolved or not the proposed Transfer actually occurs);
(d) transfers all its assets to the extent the Permitted Transfer Loan Parties or is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents otherwise wound up in a manner reasonably satisfactory to Lender transaction otherwise permitted by this Agreement, in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee which case it shall assume all of the also be released from any other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower thereof under the Loan Documents in a manner reasonably satisfactory to Lender in accordance with Section 9.18), and all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject references herein to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and “Initial Borrower” shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect refer instead to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided furtherWholly Owned Subsidiary, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under each case upon the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferDate.
Appears in 1 contract
Sources: Credit Agreement (Adient PLC)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$25,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, Note and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the PropertiesLender shall have received evidence, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory acceptable to Lender in all respectsits sole discretion, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) that Mezzanine Lender has consented to the extent the Permitted Transfer is a Transfer of all transfer of the Senior Mezzanine CollateralProperties in its entirety to, Transferee shall assume all and the related assumption of the obligations of Senior Mezzanine Borrower under Loan by the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to LenderTransferee;
(ie) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume assumes and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple and/or leasehold title to the Collateral are Properties, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgages, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lk) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pl) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(m) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Properties in its their entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer transfer of the CollateralProperties or any part thereof. Upon Notwithstanding the Transfer foregoing, in no event shall Lender consent to any assumption of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to a Securitization if the date of such transferconsideration to be paid by the transferee to Borrower, whether or not discovered prior or subsequent to the date of such transferas determined by Lender, is less than $161,000,000.00.
Appears in 1 contract
Sources: Loan Agreement (Capital Lodging)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) The initial Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the TransfereeCollateral to a Qualified Successor Borrower that will, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently contemporaneously with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower hereunder and under the Mortgage other Loan Documents in a manner reasonably satisfactory (an “Assumption”), provided no Event of Default or material monetary Default is then continuing or would result therefrom and the following conditions are met to the reasonable satisfaction of Lender:
(i) such Qualified Successor Borrower shall have executed and delivered to Lender in all respects, including, without limitation, by entering into an assumption agreement (including an assumption of the Mortgage in recordable form, if requested by Lender), 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;
(ii) the obligations of Operating Lessee under the Operating Lease 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 Lender 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 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;
(Biii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iv) 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);
(v) such Qualified Successor Borrower shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the extent opinions delivered to Lender on the Permitted Transfer is a Transfer of all of the Senior Mezzanine CollateralClosing Date, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner 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 relating to REMIC matters, 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 all respectsthis Section 2.2, including, without limitation, by entering into an assumption agreement each in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is , including a Transfer of all certified copy of the Collateralapplicable resolutions from all appropriate persons, Transferee shall assume all certified copies of the obligations organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower under the Loan Documents in issued as of a manner reasonably satisfactory to Lender in all respects, including, without limitationrecent date by its state of organization and each other state where such entity, by entering into an assumption agreement in form and substance reasonably satisfactory the nature of its business, is required to Lenderqualify or register;
(ivii) Transferee the Qualified Title Insurance Policy shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree have been properly endorsed to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after reflect the Transfer of the Properties or Property to the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such TransferQualified Successor Borrower;
(fviii) Borrower and Transferee, without any cost to Lender, the Rating Condition shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) satisfied with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all legal structure of the PropertiesQualified Successor Borrower, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners documentation of the Transferee in accordance with Assumption and the Senior Mezzanine Loan Agreementrelated legal opinions; and
(pix) Borrower’s obligations under the purchase and sale agreement pursuant Borrower shall have paid to which the Transfer is proposed Lender a nonrefundable assumption fee in an amount equal to occur shall expressly be subject to the satisfaction 1.0% of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety toPrincipal Indebtedness, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 Borrower shall not be construed to be a waiver of the right of have reimbursed Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower for its reasonable out-of-pocket costs and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of expenses incurred in connection with such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferassumption.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty forty-five (6045) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(1) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor (if a Transferee Borrower Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Assumption. Notwithstanding anything to the foregoing provisions contrary contained in Section 5.2.10 of this Article 7, following the date which is six (6) months from the Closing DateAgreement, Lender shall not unreasonably withhold its consent to (A) a Transfer one-time sale, assignment, or other transfer of the Properties Properties, in their entirety and the assumption entirety, provided that (a) Lender receives thirty (30) days prior written notice of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Personsuch transfer, (Bb) a Transfer no Event of Default has occurred and is continuing and (c) upon the Senior Mezzanine Collateral and assumption satisfaction (in the reasonable determination of the Senior Mezzanine Loan and the entire Loan by any Person, or (CLender) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfiedconditions:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee fee, which may be levied by Lender in its sole discretion, in an amount equal not to one-half of exceed one percent (0.51.0%) of the then outstanding principal balance of the Note, provided that the assumption of the Loan by Operating Tenant or a wholly-owned and controlled subsidiary of Operating Tenant shall be permitted without the payment of such assumption fee, but shall otherwise be subject to the terms and provisions of this Section 5.2.11, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(db) to the extent the Permitted Transfer is The proposed transferee (“Transferee”) shall be a Transfer of all of the Properties, Qualified Transferee or wholly owned and controlled by a Qualified Transferee;
(c) Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Note, the Security Instruments, this Agreement and the other Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fd) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal RequirementsApplicable Law, and shall execute any additional documents reasonably requested by Lender;
(ge) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple and/or leasehold title to the Collateral are Properties, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance reasonably satisfactory to Lender;
(hf) Transferee shall furnish have furnished to Lender, Lender all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 Section 4.1.35 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(kg) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A1) that Transferee’s formation documents provide for the matters described in subparagraph (hf) above, (B2) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Security Instruments, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C3) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, (4) with respect to the substantive non-consolidation of Transferee and its constituent entities (Dpartners, members or shareholders)and (5) with respect to such other matters as Lender may reasonably request;
(lh) if required by Lender, Lender The Operating Lease shall receive a Rating Agency Confirmation;
(m) to remain in full force and effect during and after the extent the Permitted Transfer is a Transfer completion of all such transfer without abatement of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreementrent; and
(pi) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) Property shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of managed by a Qualified Manager following such transfer.
Appears in 1 contract
Sources: Loan Agreement (Spirit Finance Corp)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold withhold, delay or condition consent to (A) a Transfer transfer of the Properties Property in their its entirety to or of one hundred percent (100%) of the ownership interests in the Borrower, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”"TRANSFEREE") provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty thirty (6030) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld, conditioned or delayed. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s 's and its principals’ ' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting . In no event shall Lender consent to a proposed transfer prior to a Securitization if the foregoingconsideration to be paid by the Transferee for the Property, all as determined by Lender in its sole discretion, is less than the appraised value of the direct or indirect ownership interests in Property as determined by Lender based upon the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged Appraisal delivered to Lender on terms no less favorable than the pledge in connection with Lender's underwriting of the Collateral under the Pledge Agreement)Loan;
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, Note and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency ' fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender's Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ 's organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager Qualified Manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s 's formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s 's obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5;
(l) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.
(m) In connection with an assumption of the Loan, Lender shall release the Property and the Loan from any cross collateralization and cross default provisions contained the other Loan Documents; and
(n) Lender shall have determined that the Debt Service Coverage Ratio with respect to each of (i) the Property and (ii) any Crossed Properties and the Remaining Properties computed on a combined basis which are not subject to such assumption, after giving effect to the assumption (assuming a loan amount equal to the principal balance of the Note which is not being assumed immediately following the subject assumption) shall be at least equal to 1.275 to 1.0 for the twelve (12) full calendar months immediately preceding the assumption of the Loan. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety or one hundred percent (100%) of the ownership interests in Borrower to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale of Pledge of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferProperty.
Appears in 1 contract
Sources: Loan Agreement (Sun Communities Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgages, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferProperty.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six twelve (612) months from the Closing Date, Lender shall not unreasonably withhold condition or delay consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty forty-five (6045) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$25,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of 0.30% for the first transfer and one percent (0.51.0%) of the then outstanding principal balance of the NoteNote for each subsequent transfer, and (ii) all out of reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume have assumed all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information reasonably requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.7.5; and
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-one half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information reasonably requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor (if a Transferee Borrower Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Sources: Loan Agreement (Acadia Realty Trust)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”"TRANSFEREE") provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty thirty (6030) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$25,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s 's and its principals’ ' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.percent
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7Paragraph 15, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer sale of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral Property and assumption of this Loan (hereinafter, an "ASSUMPTION") in its entirety prohibited by the Senior Mezzanine Loan and foregoing may be permitted no more than twice during the entire Loan by any Person, or (C) a Transfer term of the Collateral and assumption of the entire Loan by Note to any Person (any such Person person or entity, subject to Lender's prior written consent, which shall not be hereinafter referred to as a “Transferee”) unreasonably withheld or delayed, provided that each of the following terms and conditions are satisfied:
(ai) no Event of Default shall be default has occurred and is then continuing at the time the notice in clause (b) below is received by Lender hereunder or at the time under any of the TransferLoan Documents;
(bii) Borrower shall deliver gives Lender written notice to Lender of the terms of such proposed Transfer prospective Assumption not less than sixty (60) days before the date on which such Transfer Assumption is scheduled to close take place and, concurrently therewith, gives Lender all such information concerning the proposed Transfer and Transferee transferee of the Loan (hereinafter, a "TRANSFEREE") as Lender shall would reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, credit to a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transferborrower on a non-recourse basis. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheldTransferee. In determining whether to give or withhold its approval of the proposed TransferTransferee, Lender shall consider the Transferee's experience and track record of Transferee and its principals in owning and operating facilities a facility similar to the PropertiesProperty, the financial strength of Transferee and its principalsTransferee's entity structure, the Transferee's financial strength, the Transferee's general business standing of Transferee and its principals and the Transferee’s and its principals’ 's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, that notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on upon what Lender determines to be commercially reasonable in Lender's sole discretion and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests but no such conditions shall result in an increase in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral interest rate or monthly payment under the Pledge Agreement)Note or reduce the term thereof;
(ciii) 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 proposed TransferAssumption, (i) a non refundable nonrefundable assumption fee in an amount equal to one-half of one percent (0.5%) 1% of the then outstanding principal balance of the Note at the time of such Assumption;
(iv) the Transferee assumes and agrees to pay the Indebtedness and perform the Obligations secured hereby subject to Paragraph 11 of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such TransferAssumption, the Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executeexecutes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge assumption and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to deliver such ownership interests and all proceeds of such ownership interests shall be pledged to legal opinions as Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfermay reasonably require;
(fv) Borrower and Transfereetransferee executes, without any cost or expense to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and or financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(gvi) Transferee shall deliver Borrower delivers to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transferAssumption, all in form and 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 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 permitted under this Mortgage, and insuring that fee simple title to the Property is vested in the Transferee;
(hvii) Transferee shall furnish 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 other 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 and Mezzanine Entities’ organization and 's capacity in good standing, standing and the qualification of the signers to execute the assumption of the DebtObligations, which documents 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 partners, members or members 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, shall comply with be single purpose, bankruptcy remote entities, whose formation documents shall be approved by counsel to Lender. An individual recommended by Transferee and approved by Lender shall serve as an independent director of the covenants set forth Transferee (if the Transferee is a corporation) or the Transferee's corporate general partner or an independent member or in Article 6 hereofLender's discretion, 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;
(ixi) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new the management agreement with a new manager which meets with agreements, if any, pertaining to the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;Property; and
(jxii) intentionally omitted;
(k) the Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel stating that (A) that the Transferee’s 's formation documents provide proof for the matters described in subparagraph (hx) above, (B) that 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 Debt Obligations has been duly authorized, executed and delivered, and that the assumption agreement delivered and the other Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (CD) that the Transferee and any entity which is a controlling stockholder, member or general partner or managing member of Transferee, the Transferee have been duly organized, organized and are in existence good standing and good standingin existence, and (DE) with respect to such other matters as Lender may reasonably request;; and
(lxiii) if required by Lender, the Loan has previously been securitized pursuant to Paragraph 43 Lender shall receive a Rating Agency Confirmation;
(m) have received evidence in writing from the rating agencies to the extent effect the Permitted Transfer is proposed transfer will not result in a Transfer of all of the Propertiesdowngrade, Transferee 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 assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into be (i) any sale of this Mortgage, Note and Loan Documents to one or more investors as a Replacement Franchise Agreement with a Qualified Franchisor and whole loan; (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners participation of the Transferee Note to one or more investors; (iii) any deposit of this Mortgage, Note and Loan Documents with a trust or other entity which may sell certificates or other instruments to investors evidencing an ownership interest in accordance with the Senior Mezzanine Loan Agreement; and
assets of such trust or other entity, or (piv) Borrower’s obligations under the purchase and any other sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction or transfer of the terms and conditions of this Section 7.4. The consent of Lender with respect Note or any interest therein to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, one or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfermore investors.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article ARTICLE 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer any transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-one half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article ARTICLE 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article ARTICLE 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferProperty.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel reasonably satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The In connection with and as a condition precedent to Lender’s approval of any assumption and transfer of the Property, except to the extent the new Borrower Principal in connection with any such assumption has a net worth and liquidity equal to or better than the net worth and liquidity of Gladstone Commercial Corporation as of the Closing Date, Lender reserves the right to require any Transferee to post all cash deposits or letters of credit required or which, upon the occurrence of certain events or conditions, could subsequently be required or which are otherwise contemplated by the terms of any provision of this Agreement, irrespective of whether such events or conditions have occurred such that the then current Borrower would be required to post such deposits or letters of credit. Without limiting the foregoing, all letters of credit shall satisfy the Letter of Credit Requirements. A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor (if a Transferee Borrower Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty forty-five (6045) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$25,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting . In no event shall Lender consent to a proposed transfer prior to a Securitization if the foregoingconsideration to be paid by the Transferee for the Property, all as determined by Lender in its sole discretion, is less than the appraised value of the direct or indirect ownership interests in Property as determined by Lender based upon the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged appraisal delivered to Lender on terms no less favorable than the pledge in connection with Lender’s underwriting of the Collateral under the Pledge Agreement)Loan;
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, Note and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned assumption by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such TransferTransferee;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale or assumption agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.05; and
(1) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.05 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer transfer of the CollateralProperty. Upon Subject to the Transfer provisions of Sections 12.06, 14.04 and 15.01 hereof as to matters occurring or arising through and including the Collateral pursuant to date of an assumption, upon the occurrence of an assumption in accordance with the provisions of this Section 7.47.05, the Borrower and Guarantor (if a Transferee Principal has assumed the shall have no further obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising which arise after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferassumption.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, other than during the period that is sixty (60) days prior to and sixty (60) days following the date which is six (6) months from the Closing Datea Securitization, Lender shall not unreasonably withhold consent to a one-time Transfer (Ax) a Transfer of the Properties in their entirety or (y) one hundred percent (100%) of the indirect legal and beneficial interests in Borrower and the assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(ai) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(bj) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty thirty (6030) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.,
Appears in 1 contract
Assumption. Notwithstanding The parties hereby acknowledge and agree that, as a condition precedent to each of Purchaser’s and Seller’s respective obligation to close the foregoing provisions purchase of the 12907 Property (only) under this Article 7Agreement, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties Beneficiary shall have agreed in their entirety and the writing to Purchaser’s assumption of the Loan12907 Loan (“Beneficiary's Consent”) pursuant to assumption documents acceptable to Purchaser and Beneficiary (the “12907 Loan Assumption Documents”), the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of Beneficiary shall have irrevocably committed that it is ready and willing to have Purchaser assume the Senior Mezzanine Collateral and assumption of 12907 Loan pursuant to the Senior Mezzanine 12907 Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall includeAssumption Documents, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds Beneficiary imposing any new requirements for new 12907 Loan reserves or closing impounds or settlement statement relating other material changes to the Transfer12907 Loan Documents (collectively, the “12907 Loan Assumption Approval”). Lender Purchaser shall have the right to approve or disapprove pursue the proposed Transfer based on its 12907 Loan Assumption Approval process and Seller shall reasonably cooperate with Purchaser in connection therewith. Seller shall request Beneficiary’s form of application for Purchaser to assume the 12907 Loan within three (or 3) business days following the servicer’s on behalf of Lender) then current underwriting Effective Date, and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not shall provide to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar Purchaser any documents relating to the Properties, the financial strength of Transferee 12907 Loan Assumption Documents received from Beneficiary within two (2) days following its receipt thereof. Purchaser shall use diligent and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject efforts to such conditions as Lender may deem reasonably appropriate; and without limiting (a) make all applications to assume the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer12907 Loan, (ib) a non refundable assumption fee in an amount equal provide all 7 reasonable documents, opinions, indemnities and guaranties required by the Beneficiary and acceptable to one-half of one percent Purchaser (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form the 12907 Loan Assumption Documents) and substance reasonably satisfactory to Lender; (Bc) to the extent the Permitted Transfer is a Transfer of take all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respectsactions, including, without limitationbut not limited to, by entering into an complying with the assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined requirements imposed in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage 12907 Loan Agreement, that are reasonably necessary to assume the 12907 Loan (B) if all such Permitted Transfer is a Transfer of actions, the Senior Mezzanine Collateral“12907 Loan Assumption Undertakings”). Upon request by Seller, Purchaser shall update Seller regarding Purchaser’s efforts to assume and agree to pay the Debt (as defined in the Senior Mezzanine 12907 Loan Agreement) as and when due and shall assume all other obligations provide Seller with copies of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject any material and non-confidential correspondence not previously delivered to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned Seller issued and/or received by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments Purchaser with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the 12907 Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferAssumption Undertakings.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower Borrowers shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower Borrowers shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower Borrowers and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrowers shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee Borrowers under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgages, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(mk) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s Borrowers’ obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(1) in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferProperty.
Appears in 1 contract
Assumption. Notwithstanding (a) Upon the foregoing provisions transfer of this Article 7, following the date which is six (6) months from Purchased Assets to Buyer on the Closing Date, Lender Buyer shall not unreasonably withhold consent (except as may otherwise be specifically agreed to in any other provision of this Agreement) assume and agree to timely and fully pay, perform and discharge those obligations and liabilities of Seller (Athe Assumed Liabilities): (i) a Transfer which are set forth as current liabilities on the Closing Date Financial Statement and were included in the determination of the Properties in their entirety and Closing Date Book Value; it being understood that such liabilities shall include an amount with respect to accrued vacation pay for Transferred Employees through the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any PersonClosing Date, (Bii) a Transfer relating to up to $3,000,000 the long term debt of Seller set forth on Schedule 3.01 hereof which shall include the Senior Mezzanine Collateral current portion thereof and assumption of Notes Payable (the Senior Mezzanine Loan and the entire Loan by any PersonLong Term Debt), or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person which Long Term Debt shall be hereinafter referred to as a “Transferee”) provided that each of paid by Buyer simultaneously with the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entitiesClosing; provided, however, thatthat notwithstanding anything to the contrary that may be contained herein, notwithstanding Lender’s agreement the maximum amount of liability to consider be assumed by Buyer with respect to the foregoing factors in determining whether to give or withhold such approval, such approval Long Term Debt shall be given or withheld based $3,000,000 (including the current portion thereof) and Seller shall remain liable for all amounts in excess thereof; and (iii) which arise from and after the Closing Date (A) under those contracts of Seller set forth on what Lender determines the Schedules 5.19 and 5.20 annexed hereto which are specifically designated to be commercially reasonable and, if given, may be given subject to assumed by Buyer on such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the NoteSchedules, and (iiB) all out under any other contracts of pocket costs and expensesSeller not required to be disclosed on either of such Schedules (the Assumed Contracts); provided, including reasonable attorneys’ fees and disbursements and Rating Agency feeshowever, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) that to the extent that (x) consent to the Permitted Transfer assignment of an Assumed Contract is a Transfer required, or (y) an Assumed Contract is not assignable and, in either case, consent to the assignment of all of the Propertiessuch Assumed Contract is not obtained, Transferee shall then Buyer shall, nevertheless, assume all of and agree to pay, perform and discharge the obligations and liabilities of Mortgage Borrower Seller under such Assumed Contract to the Mortgage Loan Documents in a manner reasonably satisfactory extent that Buyer receives the benefits thereof, and the parties will cooperate with respect to Lender in each such Assumed Contract so that Buyer performs all respects, remaining obligations required of Seller thereunder (including, without limitation, by entering into an assumption agreement in form paying all sums due) and substance reasonably satisfactory to Lender; Buyer receives all remaining rights of Seller thereunder (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, receiving any goods or services due). For example if consent is withheld by entering into or not sought from the other party to an assumption agreement in form Assumed Contract (or consent is otherwise not obtained), such cooperation shall include Sellers receipt of the sum required to be paid under the Assumed Contract from Buyer and substance reasonably satisfactory to Lender; and (C) delivery of same by Seller to the extent other party to the Permitted Transfer is a Transfer of all Assumed Contract and receipt by Seller of the Collateral, Transferee shall assume all goods purchased thereunder and delivery of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory same to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;Buyer.
(ib) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (Except as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Propertiesthis Agreement, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 Buyer shall not be construed to be a waiver and does not assume any liability or obligation of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferSeller.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold withhold, condition or delay consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty thirty (6030) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld, conditioned or delayed. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information reasonably requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee, if available (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance reasonably satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel reasonably satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive a have received confirmation in writing from the Rating Agency Confirmation;
(m) Agencies that rate the Securities to the extent effect that, the Permitted Transfer is transfer will not result in a Transfer qualification, downgrade or withdrawal of all of any rating initially assigned or to be assigned to the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan AgreementSecurities; and
(pk) Borrower’s obligations under the purchase and sale agreement contract of sate pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor Borrower Principal and Master Lessee (if a Transferee Principal has assumed the provided no obligations of Guarantor the Master Lessee remain outstanding under the Loan Documents pursuant to this Section 7.4Master Lease) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7Section 9.2, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer sale of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral Project and assumption of this Loan (hereinafter, an “Assumption”) in its entirety prohibited by the Senior Mezzanine Loan and foregoing shall be permitted during the entire Loan by any Person, or (C) a Transfer term of the Collateral and assumption Note to any entity which is a wholly owned subsidiary of the entire Loan by any Person Glimcher Properties Limited Partnership (any such Person shall be hereinafter referred to as a “Glimcher”) or OMERS Realty Corporation (“OMERS”) (“Transferee”) ), subject to the prior written consent of Agent and each Lender, which shall not be unreasonably withheld provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice Borrower is then in clause (b) below is received by Lender or at the time compliance with all terms and conditions of the TransferLoan Documents and no default has occurred and is then continuing hereunder or under any of the other Loan Documents and the Transferee agrees to continue to comply with and be bound by all provisions of the Loan Documents;
(b) Borrower shall deliver gives Agent and Lenders written notice to Lender of the terms of such proposed Transfer prospective Assumption not less than sixty (60) days before the date on which such Transfer Assumption is scheduled to close take place and, concurrently therewith, gives Agent and Lenders all such information concerning the proposed Transfer Transferee and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereofeither Glimcher or OMERS, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, case may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transfereebe, as applicable, all payments thereon Agent and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement)Lenders reasonably request;
(c) Borrower shall pay to Lender, concurrently Agent and Lenders in connection with the closing of such proposed TransferAssumption, (i) a non refundable assumption fee in an amount equal to oneall out-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, reasonable attorneys’ fees incurred by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(id) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume executes and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, delivers such documents and agreements as Lender Agent shall reasonably require to evidence and effectuate said assumptionassumption and delivers such legal opinions as Agent may reasonably require, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring hazard insurance endorsements or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transferAssumption, all in form and substance satisfactory to LenderAgent, including, without limitation, an endorsement or endorsements to Agent’s loan title insurance policy insuring the lien of the Mortgage, extending the effective date of such policy to the date of execution and delivery of the assumption agreement referenced in this subparagraph, with no additional exceptions added to such policy, except for items consented to by Agent or permitted under the Mortgage, and insuring that fee simple title to the Project is vested in the Transferee;
(he) Borrower executes and delivers to Lender, without any cost or expense to Agent or Lenders, a release of Agent and Lenders, their 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 Agent and shall be binding upon the Transferee;
(f) 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 Agent or Lenders, such documents and agreements as Agent shall reasonably require to evidence and effectuate the ratification of such personal liability;
(g) Transferee shall furnish to Lender, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and capacity in good standing, standing and the qualification of the signers to execute the assumption of the DebtLoan, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners partners, members or members shareholders of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), ) as Lender Agent shall require, shall comply with the covenants set forth in Article 6 hereofbe single purpose entities, whose formation documents shall be approved by counsel to Agent;
(h) Transferee shall furnish a customary opinion of counsel reasonably satisfactory to Agent and its counsel;
(i) to the extent the Permitted Transfer is a Transfer of all The parent company of the PropertiesTransferee, Transferee either Glimcher or OMERS, as the case may be, shall assume the obligations then have minimum liquid assets consisting of Mortgage Borrower or Operating Lessee under any Management Agreement or provide cash and cash equivalents of at least $10,000,000, and a new management agreement with a new manager which meets with the requirements minimum net worth (as set forth on its most recent audited financial statements) of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderat least $100,000,000;
(j) intentionally omitted;
The Project shall be managed by a property manager which (kx) Transferee shall furnish to Lender, if required by Lender, is a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion reputable management company having at least 20 years experience in the management of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for commercial properties with similar uses as the matters described in subparagraph (h) aboveProject, (By) that at the assumption time of its engagement as property manager manages at least 15,000,000 leasable square feet of the Debt has been duly authorized, executed and delivered, and that same property type as the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standingProject, and (Dz) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive is not the subject of a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party bankruptcy or similar proceeding. In addition, the property management agreement with such Qualified Franchisor and Lender that is in form and substance must be reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferAgent.
Appears in 1 contract
Sources: Loan Modification Agreement (Glimcher Realty Trust)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties Property in their its entirety or one hundred percent (100%) of the ownership interests in Borrower to, and the assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall (i) deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the TransferTransfer and (ii) pay to Lender a non-refundable processing fee in the amount of $10,000. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-one half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which such fees under this clause (ii) shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall reasonably require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(ji) intentionally omittedTransferee shall assume the obligations of Borrower under any Deposit Account Control Agreement or provide a new Deposit Account Control Agreement with a new Deposit Bank in form and substance reasonably satisfactory to Lender;
(kj) Transferee shall furnish to Lender, if required by the Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lk) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pl) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral Property in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the CollateralProperty. Upon the Transfer of the Collateral Property pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following other than with respect to the date which is six period beginning sixty (660) months from days prior to a Securitization or sale, transfer or assignment of the Closing DateLoan and ending sixty (60) days after the closing of such Securitization or sale, transfer or assignment of the Loan, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to or the transfer of one hundred percent (100%) of the equity interests in Borrower, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided ); provided, however, Lender’s consent shall not be required if the Transferee qualifies as Qualified Transferee; provided, further, that in all cases each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit$25,000. Unless the Transferee is a Qualified Transferee, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In Unless the Transferee is a Qualified Transferee, in determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to (1) with respect to an assumption by a Transferee who qualifies as Qualified Transferee, one-half of one percent (0.50.5 %) of the then outstanding principal balance of the Note or (2) with respect to an assumption by a Transferee who does not qualify as a Qualified Transferee, one percent (1.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume have assumed all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume shall, subject to the provisions of Article 15, have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee In connection with any transfer of the Property (but not in connection with the transfer of the entire equity interests in Borrower), Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and and, as applicable, such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the applicable covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement Management Agreement with a new manager Manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to LenderAgreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance reasonably acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety or the entire equity interests in Borrower, to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty or the entire equity interests in Borrower. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor Borrower Principal (if a Transferee Principal has assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.47.5) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer. All out-of-pocket costs and expenses incurred by Lender pursuant to this Section 7.5 shall be payable by Borrower whether or not the transfer contemplated hereunder actually occurs.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty thirty (6030) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$25,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, Confidential Treatment Requested by BANA ▇▇▇▇-▇▇▇▇-00129 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information reasonably requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem reasonably necessary at the time of the transfer, all in form and substance reasonably satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall reasonably require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel reasonably satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed Confidential Treatment Requested by BANA ▇▇▇▇-▇▇▇▇-00130 and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(1) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance reasonably acceptable in all respects to Lender and in form, scope and substance acceptable in all respects to the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer transfer of the CollateralProperty. Upon Notwithstanding anything to the Transfer contrary contained in this Section 7.5, in no event shall Lender be required to consent to a transfer/assumption under this Section 7.5 prior to a Securitization if the consideration to be paid to Borrower in connection therewith is less than the appraised value of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed Property as determined in connection with Lender’s underwriting of the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferLoan.
Appears in 1 contract
Sources: Loan Agreement (Sothebys)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty forty-five (6045) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lendermanagement, agreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor (if a Transferee Borrower Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$5,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to (A) one-half quarter of one percent (0.50.25%) of the then outstanding principal balance of the NoteNote with respect to the first such transfer and (B) one-half of one percent (0.50%) of the then outstanding principal balance of the Note with respect to each such transfer thereafter, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;,
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D)) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive a have received confirmation in writing from the Rating Agency Confirmation;
(m) Agencies that rate the Securities to the extent effect that the Permitted Transfer is transfer will not result in a Transfer qualification, downgrade or withdrawal of all of any rating initially assigned or to be assigned to the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan AgreementSecurities; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor (if a Transferee Borrower Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Sources: Loan Agreement (AmREIT, Inc.)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent Assignee agrees to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close andperform, concurrently therewith, all such information concerning the proposed Transfer pay and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, discharge (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, all those trade accounts payable and (ii) all out those accrued expenses and withholdings (A) reflected in the 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 pocket costs business or with the express written consent of the Chief Financial Officer of Assignee (collectively, the "Assumed Current Liabilities"), (b) perform and expensesdischarge in accordance with their terms those (A) obligations outstanding on the date hereof under the Contracts, including reasonable attorneys’ fees but not limited to the Collective Agreement, and disbursements and Rating Agency fees(B) issued, incurred by Lender in connection with outstanding but uncleared checks of Assignor (the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d"Checks") to the extent the Permitted Transfer is a Transfer of all of Checks are classified and reflected as trade accounts payable on the PropertiesClosing Balance Sheet and perform, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all or discharge any other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan AgreementAssumed Liability, (Bc) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateralperform, assume discharge and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently accordance with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on their terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or those liabilities directly arising after the date hereof from any agreement, commitment, purchase, order, contract, license, lease, right or other contract document which Assignee has requested be transferred to it pursuant to the Asset 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 Transfer; providedcontract pursuant to the Asset Purchase Agreement and such liability shall not have arisen as a result of Assignor's actions or inactions, however(d) perform, Guarantor shall bear pay and discharge any other liabilities of Assignor included in the burden of proof to show that an event triggering Closing Balance Sheet other than any such liabilities which are specifically excluded herein and (e) perform, pay and discharge any liability of Guarantor under Assignor incurred with the Guaranty first occurred after the Transfer express written consent of the Properties or Chief Financial Officer of Assignee since the Collateral or a Transfer of Balance Sheet Date. Notwithstanding the Senior Mezzanine Collateral, as applicable; provided furtherforegoing, in no event shall any Transferee Principal Assignee be required to have assume, agree to perform, pay, or maintain 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 net worth union contract or liquidity covenant of Guarantor 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 Loan Documents as a condition 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 Transfer;
taxes) or any deferred income taxes of Assignor; (fv) Borrower and Transfereeliabilities incurred in connection with violations of occupational safety, without any cost to Lenderwage, shall furnish any information requested by Lender for health, welfare, employee benefit or Environmental Laws or regulations, which violation did not result from the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents action or inaction of Assignee subsequent to the fullest extent permitted by applicable Legal Requirementsdate hereof including, but not limited to, any claim arising from the violation of any law, regulation or ordinance relating to environmental matters or disposal of hazardous substances and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents liabilities relating to the organization and formation remediation of Transferee and of environmental conditions; (vi) liabilities to the entitiesextent 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, which are partners in connection with or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) related to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Asset Purchase Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof transactions contemplated thereby (but excluding any sales and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required use tax imposed by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) taxing authority with respect to such the sale, assignment and delivery of the Business and the Assets); (viii) other matters as Lender may reasonably request;
(l) if required by Lenderthan the Assumed Liabilities, Lender shall receive a Rating Agency Confirmation;
(m) any liabilities of Assignor to third parties arising out of the failure of Assignor to obtain any necessary consents to the extent the Permitted Transfer is a Transfer of all assignment to Assignee of the Properties, Transferee shall assume the obligations Contracts or Permits (including damages asserted by third parties for breach of Mortgage Borrower such Contracts or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject Permits due to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect failure to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor obtain such consents); (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4ix) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that 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 such actsstates (including interest, events, conditions, penalties and additions to such taxes and fees); (xii) liabilities resulting from any investigations or circumstances are inquiries by governmental authorities relating to the proximate result Business; (xiii) liabilities with respect to the operation of acts, events, conditions, or circumstances that existed the Business prior to the date hereof that may be incurred by Assignor as penalties, fines, charges or assessments by the DEA; (xiv) liabilities or obligations in respect of such transferpreferred shares of capital stock of Assignor or the holders thereof; (xv) liabilities (including without limitation any liabilities under the federal Comprehensive Environmental Response, whether Compensation, and Liability Act, 42 U.S.C ▇▇.▇▇. 9601 et seq.) arising out of or not discovered 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 or subsequent to the date hereof, whether the existence of such transferHazardous Materials is currently known or unknown, as 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, Inc.; (xvii) liabilities or obligations relating to any brokerage fees payable by Assignor upon the consummation of the transaction contemplated by the Asset Purchase Agreement; and (xviii) any other liabilities of any kind or nature whether now in existence or arising hereafter not expressly assumed by Assignee.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Drug Guild Distributors Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, a corporation (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty forty-five (6045) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be)Transferee, as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 5.15 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, General Assignment of Rents, Specific Assignment of Lease, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have has been duly organized, and are is in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect 7.5;
(1) Transferee shall, prior to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.Rating Agencies; and
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Assumption. (a) Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(ai) no Default or Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(bii) Borrower shall deliver have (A) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty forty- five (6045) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, at Borrower’s expense, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of creditrequire, which information shall includeincluding, without limitation, (1) acceptable credit and financial information about the proposed Transferee and the ownership of such Transferee and (2) evidence that the Property shall continue to be managed by a fully executed copy Qualified Manager and (B) concurrently with the delivery of such notice, paid to Lender a non-refundable processing fee in the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses amount of funds or closing or settlement statement relating to the Transfer$15,000.00. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld, conditioned or delayed. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(ciii) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfer(A) upon assumption approval, (i) a non refundable assumption fee in an amount equal to one-one half of one percent (0.50.5 %) of the then outstanding principal balance of the Note, and (iiB) concurrently with the closing of such transfer, all out of reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(iA) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents documents, certificates and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (iiB) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fv) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gvi) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hvii) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(iviii) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and shall assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(kix) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hvii) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lx) if required by Lender, Lender shall receive have received confirmation in writing from each of the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pxi) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The 7.5; and
(xii) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies; Notwithstanding the foregoing provisions of this Section 7.5(a), in no event shall Lender consent to any transfer or assumption occurring prior to the end of the twelfth (12th) full calendar month following the Closing Date, if the consideration to be paid to Borrower by the proposed Transferee, as determined by Lender, is less than the appraised value of the Property, as determined in connection with Lender’s underwriting of the Loan.
(b) Notwithstanding the foregoing provisions of this Article 7, including subsection (a) above, in connection with a one-time transfer of the Property to, and the simultaneous assumption of the Debt by, an entity meeting the requirements of Article 6 hereof and wholly owned and controlled by a Permitted Transferee, Lender’s consent shall not be required in connection therewith; provided, however, that (i) no default under the Loan Documents shall have occurred and be continuing, (ii) Borrower shall have paid all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the transfer and assumption (such amounts shall not include the assumption fee under Section 7.5(a)(iii) hereof), (iii) Lender shall have received such documents, certificates and legal opinions as it may reasonably request, including, without limitation, an acceptable substantive non-consolidation opinion, and (iv) the Property shall continue to be managed by a Qualified Manager reasonably acceptable to Lender and acceptable to the Rating Agencies.
(c) A consent by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor (if a Transferee Borrower Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent Borrower may transfer the Property in its entirety to or of one hundred percent (A100%) a Transfer of the Properties ownership interests in their entirety the Borrower, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) shall be permitted provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty thirty (6030) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld, conditioned or delayed. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting . In no event shall Lender consent to a proposed transfer prior to a Securitization if the foregoingconsideration to be paid by the Transferee for the Property, all as determined by Lender in its sole discretion, is less than the appraised value of the direct or indirect ownership interests in Property as determined by Lender based upon the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged Appraisal delivered to Lender on terms no less favorable than the pledge in connection with Lender’s underwriting of the Collateral under the Pledge Agreement)Loan;
(c) Borrower or Transferee shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-one half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume have assumed all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager Qualified Manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety or one hundred percent (100%) of the ownership interests in Borrower to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor Borrower Principal (if a Transferee Principal has assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.47.5) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer. All out-of-pocket costs and expenses incurred by Lender pursuant to this Section 7.5 shall be payable by Borrower whether or not the transfer contemplated hereunder actually occurs.
Appears in 1 contract
Sources: Loan Agreement (Sun Communities Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following subject to receipt of Lender’s prior written consent, one-time during the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption term of the Loan, the Mortgage Property may be transferred in its entirety to, and Loan and the Senior Mezzanine Loan by any Personmay be assumed by, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty forty-five (6045) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of creditcredit and (ii) pay to Lender a non-refundable processing fee in the amount of $25,000. Unless the Transferee is an Approved Transferee (in which event no approval or consent of Lender (as distinct from notice to Lender) shall be required with respect to such Approved Transferee or the Transfer to such Approved Transferee), which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. (i) Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In , conditioned or delayed and (ii) in determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-half quarter of one percent (0.50.25%) of the then outstanding principal balance of the Note, Note and (ii) all out of reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees and actual out-of-pocket disbursements and Rating Agency fees, fees incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) Borrower shall deliver evidence reasonably acceptable to Lender that the extent Debt Yield for the Property (taking into account the Permitted Transfer is Mezzanine Financing, if any) on a Transfer of all of trailing twelve (12) month basis shall at least be equal to 10% (the Properties, Transferee shall assume all of Debt Yield on the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to LenderClosing Date);
(ie) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof hereof, in each case, with respect to all acts and events occurring or arising after the closing of the Transfer, and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) (it being acknowledged that if the Transferee is an Approved Transferee, such Transferee shall assume be deemed an approved Transferee Principal and no further approval or consent of Lender shall be required with respect thereto) shall have assumed the obligations of Guarantor Borrower Principal under the Loan Documents Guaranty with respect to all acts and events occurring or arising after the closing of the Transfer (in each case, pursuant to an assumption agreement reasonably acceptable to the parties) and the then existing Guarantor Borrower Principal shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor Borrower Principal shall bear the burden of proof to show that an event triggering liability of Guarantor Borrower Principal under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such TransferProperty;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information reasonably requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee Borrower shall deliver to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem reasonably necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any the Management Agreement or from and after the closing of the Transfer or, at Borrower and Transferee’s election, provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omittedTransferee shall assume the obligations of Borrower from and after the closing of the Transfer under any Lockbox Agreement or, at Transferee’s election, provide a new Lockbox Agreement with a new Lockbox Bank in form and substance reasonably satisfactory to Lender;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, Lender a New Non-Consolidation Opinion, Opinion and an additional opinion of counsel reasonably satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(l) Transferee shall have delivered to Lender either (i) insurance acceptable to Lender in substantially the same form and scope as required pursuant to Section 8.1(a)(xi) hereof or (ii) an environmental indemnity agreement from Transferee Principal on Lender’s then current form with respect to all acts and events relating to Hazardous Substances and Environmental Laws occurring or arising after the closing of the Transfer, provided, however, that the requirements of this clause (l) shall be deemed satisfied if Borrower elects in connection with the Transfer, in Borrower’s sole and absolute discretion, to maintain the environmental insurance policy required pursuant to Section 8.1(a)(xi) purchased by Borrower and in effect as of the closing of the Loan;
(m) the Mezzanine Loan must be repaid in full in accordance with the terms of the Mezzanine Loan Agreement (it being acknowledged and agreed that Permitted Mezzanine Financing may be obtained in connection therewith as provided herein);
(n) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(po) Borrower’s obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5. The A consent of by Lender with respect to a Transfer of the Collateral Property in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the CollateralProperty (unless such Transfer is a Permitted Transfer). Upon the Transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor Borrower Principal (if a Transferee Principal has assumed the obligations of Guarantor Borrower Principal under the Loan Documents Guaranty with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.47.5) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances first occurring or arising after the date of such transfer, except provided, however, Borrower and Borrower Principal shall bear the burden of proof to show that an event triggering liability under the extent that such acts, events, conditions, Loan Documents first occurred after the transfer of the Property. The immediately preceding sentence may be used by Borrower Principal (or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date any replacement guarantor) as evidence of such transfer, release of liability. All out-of-pocket costs and expenses incurred by Lender pursuant to this Section 7.5 except as otherwise expressly excluded above shall be payable by Borrower whether or not discovered prior or subsequent to the date of such transfertransfer contemplated hereunder actually occurs.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of all of the Properties in their entirety or one hundred percent (100%) of the ownership interests in Borrower to, and the assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall (i) deliver written notice to Lender of the terms of such proposed Transfer not less than sixty thirty (6030) days before the date on which such Transfer is scheduled to close close; and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender Borrower shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, deliver a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Transfer and (ii) pay to Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold a non‑refundable processing fee in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval amount of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement)$20,000;
(c) Borrower Lender shall pay to Lenderhave received an agreement, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory acceptable to Lender; (B) , pursuant to the extent the Permitted Transfer is a Transfer of which Transferee has assumed all of the Senior Mezzanine Collateral, Transferee shall assume all of the Borrower’s obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Documents;
(i) Lender in all respectsshall have received an agreement, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory acceptable to Lender; , pursuant to which Transferee assumes and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(e) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non‑refundable assumption fee in an amount equal to $250,000.00 for the first such assumption and $500,000.00 for each such assumption thereafter, and (ii) all actual out‑of‑pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(f) Lender shall have received such agreements, certificates, legal opinions and other documentation as may be reasonably requested by Lender, including, without limitation, a title insurance endorsement confirming the Lien of the Mortgage as a valid first lien on the Property (subject to Permitted Encumbrances);
(g) the Transferee shall be a corporation, partnership (including a limited or limited liability limited partnership), limited liability company or other type of entity acceptable to Lender that satisfies the following conditions: (i) such transferee and Transferee’s Principals shall be acceptable to Lender, which determination shall be based upon, inter alia, (a) such transferee and Transferee’s Principals having an aggregate net worth and liquidity reasonably satisfactory to Lender, (b) Lender’s receipt of searches (including credit, negative news, OFAC, litigation, judgment, lien and bankruptcy searches) reasonably required by Lender on such transferee and Transferee’s Principals, the results of which must be reasonably acceptable to Lender, and (c) such transferee and Transferee’s Principals otherwise satisfying Lender’s then current applicable underwriting criteria and requirements, (ii) such transferee shall qualify as a single purpose, bankruptcy remote entity under criteria established by the Rating Agencies, and (iii) Transferee shall have delivered to Lender a New Non Consolidation Opinion, and (iv) such transferee, together with Transferee’s Principals, shall be an experienced operator and/or owner of properties similar in location, size, class, use, operation and value as the Properties, as determined by Lender in its reasonable discretion and as evidenced by financial statements and other information reasonably requested by Lender or requested by the Rating Agencies;
(h) the property manager proposed by Transferee shall have sufficient experience in the ownership and management of properties similar in location, size, class, use, operation and value as the Properties, and Lender shall be provided with reasonable evidence thereof (and Lender reserves the right to approve the Transferee without approving the substitution of the property manager);
(i) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(gj) Transferee Borrower shall deliver to Lender, without any cost or expense to Lender, a UCC such endorsements to each Title Insurance Policy insuring that equity interests of all owners of the Collateral are fee simple title to each Individual Property is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem reasonably necessary at the time of the transfer, all in form and substance reasonably satisfactory to Lender;
(hk) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall reasonably require, shall comply with the covenants set forth in Article 6 hereof;
(il) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(jm) intentionally omittedTransferee shall assume the obligations of Borrower under any Deposit Account Control Agreement or provide a new Deposit Account Control Agreement with a new Deposit Bank in form and substance reasonably satisfactory to Lender;
(kn) Transferee shall furnish to Lender, if required by the Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel reasonably satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, and (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lo) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral Properties in its their entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the CollateralProperties. Upon the Transfer of the Collateral Properties pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Sources: Loan Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such Any proposed Transfer not less than sixty (60) days before by the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer Property Owner of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form Collateral and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt any proposed “Assumption” (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents by a Qualified Successor Property Owner shall be subject to Lender’s approval, which approval may be given or withheld in Lender’s sole discretion, and Borrower shall not cause or permit Property Owner to effectuate any such Transfer or “Assumption” (as defined in the provisions Mortgage Loan Agreement) of Article 15 the Mortgage Loan unless and until Lender’s written consent thereto has been obtained.
(b) Subject to Section 2.3(a), if the initial Property Owner is effectuating a Transfer of all of the Mortgage Loan Collateral and an “Assumption” (as defined in the Mortgage Loan Agreement) of the Mortgage Loan by a Qualified Successor Property Owner pursuant to Section 2.3 of the Mortgage Loan Agreement, the initial Borrower shall contemporaneously provide for a Qualified Successor Borrower that will (Bw) if own, together with any Single-Purpose Equityholder of such Permitted Transfer Qualified Successor Property Owner, 100% of the equity interests in the Qualified Successor Property Owner, (x) own 100% of the equity interests in any such Single-Purpose Equityholder of such Qualified Successor Property Owner, (y) assume all of the obligations of Borrower hereunder and (z) pledge all of its equity interests in the Qualified Successor Property Owner and in the Single-Purpose Equityholder of such Qualified Successor Property Owner to replace the original Collateral hereunder (an “Assumption”); provided no Event of Default is then continuing or would result therefrom and the following conditions are met to the reasonable satisfaction of Lender:
(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 and containing representations substantially equivalent to those contained in Article IV (or, as applied to a Qualified Successor TRS Lessee, to the extent such representations are applicable to TRS Lessee), and such other representations (and evidence of the accuracy of such representations) as Lender (or the Servicer) shall reasonably request;
(ii) the equity interests being pledged by such Qualified Successor Borrower shall be pledged to Lender in a manner reasonably satisfactory to Lender; such Qualified Successor Borrower shall have executed a pledge agreement substantially in the same form as the Pledge Agreement pledging all of its equity interests in the Qualified Successor Property Owner and the Single-Purpose Equityholder of such Qualified Successor Property Owner; and such Qualified Successor Borrower shall cause the Qualified Successor Property Owner and the Single-Purpose Equityholder of such Qualified Successor Property Owner to execute and deliver its consent to such pledge substantially in the same form as the consent of Property Owner LLC, Property Owner LP and Property Owner GP delivered to Lender on the Closing Date;
(iii) either (x) the TRS Leases shall have been terminated in accordance with the terms of this Agreement and the Mortgage Loan Agreement or (y) such Qualified Successor Borrower shall have caused the Qualified Successor Property Owner to cause a Qualified Successor TRS Lessee to execute and deliver to Lender new operating leases with respect to each of the Mortgaged Properties and an assumption agreement, in form and substance reasonably acceptable to Lender, evidencing its agreement to be bound by the terms of the Mortgage Loan Documents and the Loan Documents to which TRS Lessee is a Transfer party;
(iv) TRS Lessee shall have delivered to Lender an instrument reasonably satisfactory to Lender acknowledging the Assumption and ratifying its continued obligations under the TRS Leases, the Approved Management Agreements, the Approved Franchise Agreements, the TRS Lease Subordination Agreement and the Mortgage Loan Documents (including, without limitation, the Mortgages) and the Loan Documents to which it is a party, except that if, upon the Assumption, Borrower causes Property Owner to either (x) terminate the TRS Leases in accordance with the terms of this Agreement and the Senior Mezzanine CollateralMortgage Loan Agreement or (y) causes a Qualified Successor TRS Lessee to deliver, assume and agree with respect to pay the Debt each Mortgaged Property, a new TRS Lease Subordination Agreement, a new “TRS Lease Subordination Agreement” (as defined in the Senior Mezzanine Mortgage Loan Agreement) as and when due and shall assume an assumption of all other of TRS Lessee’s obligations of Senior Mezzanine Borrower under the Senior Mezzanine Mortgage Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents Mortgages) and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts which it is a party, which covers the period from and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided furtherAssumption, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transfereeeach case, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender, then TRS Lessee shall have no liability for indemnified matters first occurring after the date of such Assumption;
(jv) intentionally omittedsuch Qualified Successor Borrower shall execute and deliver, and shall cause to be executed and delivered, such Uniform Commercial Code financing statements and new, or amendments to existing, Franchisor Comfort Letters, in each case, as may be reasonably requested by Lender;
(kvi) Transferee such Qualified Successor Borrower shall furnish deliver to LenderLender a new environmental indemnity and guaranty of recourse carveouts, if required by Lenderin each case, in form and substance substantially similar to the Environmental Indemnity and Recourse Guaranty executed on the Closing Date or otherwise in a REMIC Opinion, a New Non-Consolidation Opinion, form and an opinion of counsel substance reasonably satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for executed by a substitute indemnitor satisfactory to Lender, which in each case cover indemnified matters first occurring after the matters described in subparagraph (h) above, (B) that the assumption date of the Debt has been duly authorizedAssumption, executed in which event Sponsor and deliveredOperating Partnership shall have no liability for indemnified matters first occurring after the date of such Assumption;
(vii) 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, in the event of a Securitization of the Loan, satisfactory to each of the Rating Agencies; and that the assumption agreement Borrower and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, Qualified Successor Borrower shall have been duly organized, and are in existence and good standing, and (D) with respect to delivered such other matters documents and certificates as Lender may shall reasonably request;
(lviii) 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 Qualified Successor Property Owner (and, if required by Lenderapplicable, Lender shall receive a Rating Agency Confirmation;
any Qualified Successor TRS Lessee) and the due authorization of the Qualified Successor Borrower and the Qualified Successor Property Owner (mand, if applicable, any Qualified Successor TRS Lessee) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under Loan and to execute and deliver the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is 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, the Qualified Successor Property Owner and any Single-Purpose Equityholder of the Qualified Successor Property Owner (and, if applicable, any Qualified Successor TRS Lessee), together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower, the the Qualified Successor Property Owner and any Single-Purpose Equityholder of the Qualified Successor Property Owner (and, if applicable, any Qualified Successor TRS Lessee) issued as of a recent date by its state of formation or organization and each other state where such entity, by the nature of its business, is required to qualify or register;
(nix) intentionally omitted;
at Borrower’s sole cost and expense, (ox) the Senior Mezzanine Loan Qualified Title Insurance Policies shall simultaneously be assumed by have been properly endorsed to reflect the equity owners Transfer of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject Mortgaged Properties to the satisfaction Qualified Successor Property Owner (and, if applicable, the conveyance of the terms TRS Lessee Pledged Collateral to the Qualified Successor TRS Lessee); (y) such Qualified Successor Borrower shall have delivered a replacement “Mezzanine Lender’s Financing Endorsement” or a comparable endorsement reasonably acceptable to Lender, naming Lender as an additional insured (in form and conditions of this Section 7.4. The consent of Lender substance reasonably acceptable to Lender) attached to the owner’s title insurance policies with respect to each of the Mortgaged Properties issued in favor of the Qualified Successor Property Owner (or such Qualified Successor Borrower shall have delivered a letter from the applicable title insurer that the Transfer of the Collateral in its entirety toProperties (and, and if applicable, the assumption conveyance of the TRS Lessee Pledged Collateral to the Qualified Successor TRS Lessee) and “Assumption” (as defined in the Mortgage Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver Agreement) of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon Mortgage Loan and the Transfer of the Collateral pursuant and the Assumption of the Loan do not affect the validity of such Qualified Title Insurance Policies and the original “Mezzanine Lender’s Financing Endorsements” (or a comparable endorsement as described above) attached thereto) and (z) such Qualified Successor Borrower shall have delivered a replacement UCC insurance policy in favor of Lender insuring Lender’s first-priority perfected security interest in all of the equity interests in the Qualified Successor Property Owner and any Single-Purpose Equityholder of the Qualified Successor Property Owner pledged by such Qualified Successor Borrower to Lender;
(x) the requirements of Section 2.3 of the Mortgage Loan Agreement shall have been satisfied or will be satisfied concurrently with the closing of the Assumption;
(xi) if a Securitization of the Loan has occurred, Rating Confirmation shall have been received with respect to the legal structure of the Qualified Successor Borrower (and/or, if applicable, Qualified Successor TRS Lessee), the documentation of the Assumption and the related legal opinions;
(xii) written confirmation shall have been received from each Junior Mezzanine Lender that the corresponding requirements specified in the applicable Junior Mezzanine Loan Documents with respect to loan assumptions have been satisfied;
(xiii) such Qualified Successor Borrower shall deliver to Lender a replacement guaranty in form and substance substantially similar to the Operating Partnership Guaranty, or otherwise in a form and substance satisfactory to Lender, executed by a substitute guarantor approved by Lender in its sole discretion;
(xiv) unless the Mortgage Loan Sponsor Guaranty shall have previously terminated in accordance with its terms, such Qualified Successor Borrower shall deliver, or cause to be delivered, to Mortgage Lender a replacement guaranty in form and substance substantially similar to the Mortgage Loan Sponsor Guaranty, or otherwise in a form and substance satisfactory to Lender, executed by a substitute guarantor approved by Lender in its sole discretion; and
(xv) Lender shall have received upon request a nonrefundable assumption fee in an amount equal to 0.5% of the Loan Amount 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 Assumption (including reasonable attorneys’ fees and costs, the cost of issuing new Qualified Title Insurance Policies reflecting the pledge of equity by the Qualified Successor Borrower and the issuance of a “Mezzanine Lender’s Financing Endorsement”, or a comparable endorsement reasonably acceptable to Lender, naming Lender as an additional insured, to the owner’s policies issued to the Qualified Successor Property Owner, 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 7.42.3, the initial Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under replaced by such Qualified Successor Borrower as “Borrower”, the Loan Documents for actsinitial Property Owner shall be replaced by such Qualified Successor Property Owner as “Property Owner”, events, conditions, or circumstances occurring or arising after the date initial Property Owner GP shall be replaced by the Single-Purpose Equityholder of such transferQualified Successor Property Owner as “Property Owner GP”, except to the extent that such actsin each case, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferfor all purposes under this Agreement and all other Loan Documents.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting appropriate (provided, however, such Transferee shall not be a Delaware Statutory Trust, a tenancy-in-common, a Crowdfunded Person, or any Person who is (i) Controlled (directly or indirectly) by one or more of the foregoing an/or (ii) more than forty-nine percent (49%) owned (directly or indirectly) by one or more of the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by LenderL▇▇▇▇▇;
(gf) Transferee Borrower shall deliver to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender’s Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Properties, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender, and if the new Manager is an Affiliate of Transferee, a New Non-Consolidation Opinion reasonably satisfactory to Lender;
(ji) intentionally omitted;
(kj) Transferee shall furnish to Lender, if required by LenderL▇▇▇▇▇, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lk) if required by LenderL▇▇▇▇▇, Lender shall receive a Rating Agency Confirmation;
(ml) to the extent the Permitted Transfer is a Transfer of all of the PropertiesTransferee shall, Transferee shall as applicable, assume the obligations of Mortgage Borrower or Operating Lessee under the any Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (iii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(nm) intentionally omitted;
(on) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of proposed transfer to the Transferee in accordance shall not constitute a Covered Transaction or, if the proposed transfer to the Transferee is a Covered Transaction, then CFIUS Approval shall be obtained with the Senior Mezzanine Loan Agreementrespect to such proposed transfer; and
(po) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral Properties in its their entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the CollateralProperties. Upon the Transfer of the Collateral Properties pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “"Transferee”") provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating the amount of $10,000. Unless the Transferee is an initial extension of creditFSP Transferee, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s 's and its principals’ ' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) unless the Transferee is an FSP Transferee, a non non-refundable assumption fee in an amount equal to one-one half of one percent (0.50.50%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency ' fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender's Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ 's organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s 's formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by LenderLender and only if the Transferee is not an FSP Transferee, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s 's obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies, if required based on the ownership structure of Transferee. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer. Notwithstanding anything to the contrary contained in this Section 7.5, in no event shall Lender be obligated to give its consent to an Assumption prior to a Securitization in the event Lender shall have determined that the consideration to be paid by the applicable Transferee in connection with such Assumption is less than the appraised value of the Property as such appraised value was determined by Lender in connection with the closing of the Loan.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower Borrowers shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$10,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) The initial Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the TransfereeCollateral to a Qualified Successor Borrower that will, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently contemporaneously with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower hereunder and under the Mortgage other Loan Documents in a manner reasonably satisfactory (an “Assumption”), provided no Event of Default or material monetary Default is then continuing or would result therefrom and the following conditions are met to the reasonable satisfaction of Lender:
(i) such Qualified Successor Borrower shall have executed and delivered to Lender in all respects, including, without limitation, by entering into an assumption agreement (including an assumption of the Mortgage in recordable form, if requested by Lender), 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;
(ii) the obligations of Operating Lessee under the Operating Lease 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 Lender 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 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;
(Biii) such Uniform Commercial Code financing statements as may be reasonably requested by Lender shall be filed;
(iv) 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);
(v) such Qualified Successor Borrower, Qualified Successor Operating Lessee and Borrower FF&E Subsidiary shall have delivered to Lender legal opinions of counsel reasonably acceptable to Lender that are equivalent to the extent opinions delivered to Lender on the Permitted Transfer is a Transfer of all of the Senior Mezzanine CollateralClosing Date, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner including new nonconsolidation opinions that are reasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; and Borrower, Qualified Successor Borrower, Qualified Successor Operating Lessee and Borrower FF&E Subsidiary shall have delivered such other documents, certificates and legal opinions, including relating to REMIC matters, as Lender shall reasonably request;
(vi) such Qualified Successor Borrower, Qualified Successor Operating Lessee and Borrower FF&E Subsidiary shall have delivered to Lender all documents reasonably requested by it relating to the existence of each such entity and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in all respectsthis Section 2.2, includingand the due authorization of the Qualified Successor Operating Lessee to assume the Operating Lease and to execute and deliver the documents described in this Section 2.2, without limitation, by entering into an assumption agreement each in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is , including a Transfer of all certified copy of the Collateralapplicable resolutions from all appropriate persons, Transferee shall assume all certified copies of the obligations organizational documents of the Qualified Successor Borrower under and Qualified Successor Operating Lessee, together with all amendments thereto, and certificates of good standing or existence for the Loan Documents in Qualified Successor Borrower, Qualified Successor Operating Lessee and Borrower FF&E Subsidiary issued as of a manner reasonably satisfactory to Lender in all respects, including, without limitationrecent date by its state of organization and each other state where such entity, by entering into an assumption agreement in form and substance reasonably satisfactory the nature of its business, is required to Lenderqualify or register;
(ivii) Transferee the Qualified Title Insurance Policy shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree have been properly endorsed to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after reflect the Transfer of the Properties or Property to the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such TransferQualified Successor Borrower;
(fviii) Neither the Qualified Successor Borrower, the Qualified Successor Operating Lessee, nor any other Person that is a bankrupty-remote entity under common ownership or control with Qualified Successor Borrower and Transferee, without any cost to Lenderor the Qualified Successor Operating Lessee, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, have filed a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee petition under any Management Agreement state or provide federal bankruptcy or insolvency laws or liquidated all or a new management agreement with a new manager which meets with the requirements major portion of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
its assets or property within seven (j7) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed years prior to the date of the proposed Transfer.
(ix) the Rating Condition shall have been satisfied with respect to the legal structure of the Qualified Successor Borrower and Qualified Successor Operating Lessee, the documentation of the Assumption and the related legal opinions; and
(x) Borrower 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 in connection with such transferassumption. Notwithstanding clause (x) above, in connection with the first assumption of the Loan in accordance with this Section 2.2, Borrower shall have paid to Lender a nonrefundable assumption fee in an amount equal to $30,000, and Borrower shall have reimbursed Lender for its reasonable out-of-pocket costs and expenses incurred in connection with such assumption. In determining whether or not discovered prior or subsequent the foregoing conditions are satisifed, Servicer shall use commercially reasonable efforts to the date make its determination within thirty (30) days after receipt from Borrower of such transferall required information, including any additional information that Servicer requests.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transferhas occurred;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$25,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.51.0%) of the then outstanding principal balance of the Note, Note and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) Borrower shall cause the Transferee of the Property to the extent the Permitted Transfer is create a Transfer of new parent company special purpose entity satisfying all of the Properties, Transferee requirements of Section 6.1 hereof which shall assume all of the obligations of Mortgage the Borrower under the Mortgage Loan, pursuant to such documentation reasonably acceptable to the Lender, which Transferee shall own all of the ownership interests in the new property owner(s)/mortgage borrower(s);
(e) Borrower shall cause the Transferee to execute and deliver a pledge agreement in substantially the same form as the Pledge Agreement in respect of the ownership interests in the new property owner(s)/mortgage borrower(s) (such interests shall otherwise comply with the requirements of the Loan Documents and be substantially identical in a manner reasonably satisfactory to Lender in all respectsstructure, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory as the Collateral delivered at closing of the Loan);
(f) Borrower shall cause the Transferee to Lender; (B) authorize Lender to file such UCC Financing Statements required by Lender with respect to the extent substitute Collateral;
(g) Borrower shall deliver, at its sole cost and expense, a UCC Title Insurance Policy insuring the Permitted Transfer is new pledge agreement as a Transfer of all valid first lien on the ownership interest pledged thereunder and substantially identical to the UCC Title Insurance Policy delivered at the closing of the Senior Mezzanine Collateral, Loan;
(h) Borrower shall cause Transferee shall assume all of to provide opinion letters in substantially the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in same form and substance reasonably satisfactory to Lender; and (C) to as such opinion letters delivered at the extent the Permitted Transfer is a Transfer of all closing of the CollateralLoan (including enforcement and perfection opinions and a substantive con-consolidation opinion of Transferee and its constituent entities, Transferee which law firms and opinions shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance be reasonably satisfactory to Lender;
(i) The Transferee shall (A) if such Permitted Transfer is a Transfer receive an updated Owner’s Title Policy reasonably acceptable to Lender and in amount at least equal to the amount of the Properties, assume existing Owner’s Title Policy; and
(j) Borrower shall cause the Transferee to execute and agree to pay deliver such other replacement loan and closing documents in substantially the Debt (same forms as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the and such other closing of such Transfer, Transferee and its constituent partners, members or shareholders documents as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(gk) The Transferee shall deliver to Lender, without any cost be a Qualified Entityholder or expense to Lender, wholly owned and controlled by a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably requestQualified Entityholder;
(l) if required The Property shall be managed by Lender, Lender shall receive a Rating Agency Confirmation;Qualified Manager following such transfer; and
(m) to Mortgage Borrower shall have complied with the extent the Permitted Transfer is a Transfer requirements of all Article 7 of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The A consent of by Lender with respect to a Transfer transfer of the Collateral Properties in its their entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer transfer of the CollateralProperties or any part thereof. Upon Notwithstanding the Transfer foregoing, in no event shall Lender consent to any assumption of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to a Securitization if the date of such transferconsideration to be paid by the transferee to Borrower, whether or not discovered prior or subsequent to the date of such transferas determined by Lender, is less than $161,000,000.00.
Appears in 1 contract
Assumption. Notwithstanding The Company shall not enter into or be party to a Major Transaction that is to be treated as an Assumption pursuant to Section 5(c)(i), unless (A) the foregoing successor entity resulting from such Major Transaction (in each case, a “Successor Entity”), assumes in writing all of the obligations of the Company under this Warrant, the Facility Agreement (but only if there will be an outstanding balance under the Facility Agreement immediately following the closing of the Major Transaction) and the Registration Rights Agreement in accordance with the provisions of this Article 7Section (ii) pursuant to written agreements in form and substance reasonably satisfactory to the Required Holders (as approved by the Required Holders prior to such Major Transaction (not to be unreasonably withheld or delayed)), following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent including agreements to (A) deliver to each holder of Warrants in exchange for such Warrants a Transfer security of the Properties Successor Entity evidenced by a written instrument substantially similar in their entirety form and substance to the assumption Warrants, including, without limitation, representing the appropriate number of shares of the LoanSuccessor Entity, having similar exercise rights as the Mortgage Loan Warrants (including but not limited to a similar Exercise Price and similar Exercise Price adjustment provisions based on the Senior Mezzanine Loan price per share or conversion ratio to be received by any Personthe holders of Common Stock in the Major Transaction) and similar registration rights as provided by the Registration Rights Agreement, reasonably satisfactory to the Required Holders and (B) the Successor Entity is a Transfer Public Successor Entity. For the avoidance of doubt, the Senior Mezzanine Collateral and assumption of Required Holders’ reasonable satisfaction referred to in the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person immediately preceding sentence shall be hereinafter referred construed only to apply to confirmation that the Warrant and registration rights agreement delivered to the Holders upon an assumption hereunder shall conform to the requirements of this Section 5(c)(ii), and this Section 5(c)(ii) shall not be construed as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender granting consent or at the time of the Transfer;
(b) Borrower shall deliver written notice approval rights to Lender of any Holder with respect to the terms of such proposed Transfer not less Major Transaction or to permit any Holder to demand any additional consideration in respect of this Warrant other than sixty as provided herein. Upon the occurrence of any Major Transaction, any Successor Entity shall succeed to, and be substituted for (60) days before so that from and after the date on which of such Transfer is scheduled Major Transaction, the provisions of this Warrant and the Registration Rights Agreement referring to close andthe “Company” shall refer instead to the Successor Entity), concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy may exercise every right and power of the purchase Company and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower the Company under this Warrant with the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to same effect as if such Successor Entity had been named as the extent the Permitted Transfer is a Transfer of all Company herein. Upon consummation of the Senior Mezzanine CollateralMajor Transaction, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee Successor Entity shall deliver to Lender, without the Holder confirmation that there shall be issued upon exercise or redemption of this Warrant at any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners time after the consummation of the Collateral are vested Major Transaction, in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time lieu of the transfershares of Common Stock (or other securities, all in form and substance satisfactory to Lender;
(hcash, assets or other property) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and issuable upon the qualification exercise of the signers Warrants prior to execute the assumption such Major Transaction, such shares of publicly traded common stock (or their equivalent) of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be)Successor Entity, as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee adjusted in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction provisions of the terms and conditions this Warrant. The provisions of this Section 7.4shall apply similarly and equally to successive Major Transactions and shall be applied without regard to any limitations on the exercise of this Warrant other than any applicable beneficial ownership limitations. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the Any assumption of the Loan by, a Transferee pursuant to Company obligations under this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) paragraph shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except referred to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferherein as an “Assumption.”
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7PARAGRAPH 15, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer sale of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral Property and assumption of this Loan (hereinafter, an "ASSUMPTION") in its entirety prohibited by the Senior Mezzanine Loan and foregoing may be permitted during the entire Loan by any Person, or (C) a Transfer term of the Collateral and assumption of the entire Loan by Note to any Person (any such Person entity, subject to Lender's prior written consent, which shall not be hereinafter referred to as a “Transferee”) unreasonably withheld or delayed, provided that each of the following terms and conditions are satisfied:
(ai) no Event of Default shall be has occurred and is then continuing at the time the notice in clause (b) below is received by Lender hereunder or at the time under any of the TransferLoan Documents;
(bii) Borrower shall deliver gives Lender written notice to Lender of the terms of such proposed Transfer prospective Assumption not less than sixty (60) days before the date on which such Transfer Assumption is scheduled to close take place and, concurrently therewith, gives Lender all such information concerning the proposed Transfer and Transferee transferee of the Loan (hereinafter, a "TRANSFEREE") as Lender shall would reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, credit to a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transferborrower on a non-recourse basis. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheldTransferee. In determining whether to give or withhold its approval of the proposed TransferTransferee, Lender shall consider the Transferee's experience and track record of Transferee and its principals in owning and operating facilities a facility similar to the PropertiesProperty, the financial strength of Transferee and its principalsTransferee's entity structure, the Transferee's financial strength, the Transferee's general business standing of Transferee and its principals and the Transferee’s and its principals’ 's relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, that notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on upon what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests but no such conditions shall result in an increase in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral interest rate or monthly payment under the Pledge Agreement)Note or reduce the term thereof;
(ciii) Borrower shall pay to LenderLender (A) in connection with such proposed Assumption, all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees incurred by Lender and any rating agency approval fees (whether such transfer is approved or rejected), plus (B) concurrently with the closing of such proposed TransferAssumption, (i) a non refundable nonrefundable assumption fee in an amount equal to one-half of one percent (0.5%) 1% of the then outstanding principal balance of the Note at the time of such Assumption;
(iv) the Transferee assumes and agrees to pay the Indebtedness and perform the Obligations secured hereby subject to PARAGRAPH 11 of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such TransferAssumption, the Transferee executes, without any cost or expense to Lender, such documents and its constituent partners, members or shareholders agreements as Lender shall reasonably 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;
(vi) Borrower delivers to Lender, without any cost or expense to Lender, hazard insurance endorsements or certificates and other similar materials as Lender may deem reasonably necessary at the time of the Assumption, all in form and substance satisfactory to Lender, including, without limitation, all 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 delivery of the entities which own interests similar 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 permitted under this Mortgage, and insuring that fee simple title to the interests Property is vested in Senior Mezzanine the Transferee;
(vii) Borrower owned 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 other 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 “Mezzanine Entities”)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) 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 Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge the ratification of each such guarantee and security indemnity agreement, whereby all of provided that if the direct ownership interests Transferee or a party associated with the Transferee approved by Lender in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume its reasonable discretion assumes the obligations of Guarantor the current Guarantors or Indemnitors under the Loan Documents with respect to all acts and events occurring their guarantees or arising after the closing of the Transfer indemnity agreements and the then existing Guarantor shall be released under Transferee or such party associated with the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; providedTransferee if applicable, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lenderexecutes, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all new guarantee and/or indemnity agreement in form and substance satisfactory to Lender, then 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;
(hx) the Transferee shall furnish to Lenderfinish, if the Transferee is a corporation, partnership or other entity, all documents appropriate papers evidencing the Transferee’s and Mezzanine Entities’ organization and 's capacity in good standing, standing and the qualification of the signers to execute the assumption of the DebtObligations, which documents 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 partners, members or members 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, shall comply with the covenants set forth in Article 6 hereofbe single purpose, bankruptcy remote entities, whose formation documents shall be approved by counsel to Lender;
(ixi) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower under the management agreements, if any, pertaining to the Property or Operating Lessee under any Management Agreement or provide enter into a new management agreement with a new property manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory agreeable to Lender;
(jxii) intentionally omitted;
(k) the Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel stating that (A) that the Transferee’s 's formation documents provide proof for the matters described in subparagraph SUBPARAGRAPH (hX) above, (B) that 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 but only if required by any rating agency after the securitization of the Loan, (C) the assumption of the Debt Obligations has been duly authorized, executed and delivered, and that the assumption agreement delivered and the other Loan Documents are valid, binding and enforceable against the Transferee in accordance with their terms, (CD) that the Transferee and any entity which is a controlling stockholder, member or general partner or managing member of Transferee, the Transferee have been duly organized, organized and are in existence good standing and good standingin existence, and (DE) with respect to such other matters as Lender or any applicable rating agency may reasonably request;
(lxiii) if required by Lender, the Loan has previously been securitized pursuant to PARAGRAPH 43 Lender shall receive have received evidence in writing from the rating agencies to the effect the proposed transfer will not result in a Rating Agency Confirmation;
(m) downgrade, qualification, reduction or withdrawal or any rating initially assigned or to be assigned in a Secondary Market Transaction, to the extent such letter is available from the Permitted Transfer is a Transfer of all of the Propertiesrating agencies. For purposes hereof, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.a
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Filing (Equity Lifestyle Properties Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”"TRANSFEREE") provided that each of the following terms and conditions are satisfied:
(a) no Default or Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty thirty (6030) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$25,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s 's and its principals’ ' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency ' fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs)transfer;
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form assumes and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agrees to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender's Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ 's organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s 's formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, subject to customary qualifications acceptable to Lender in connection with the closing of the Loan, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (DE) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a Rating Agency Confirmationqualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreement; and
(pk) Borrower’s 's obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5; and
(l) Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transferProperty.
Appears in 1 contract
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer of the Properties in their entirety and the assumption of the Loan, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Mortgage Loan by any Person, or (CB) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”) provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(b) Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than sixty (60) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer. Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ 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 on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents Documents
in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, and (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Mortgage Borrower owned by Borrower or otherwise hold any ownership interest in any entities that own any Property (the “Mezzanine Entities”), shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transfer;
(f) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(g) Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(h) Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(i) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lender;
(j) intentionally omitted;
(k) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (h) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(l) if required by Lender, Lender shall receive a Rating Agency Confirmation;
(m) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Junior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Junior Mezzanine Loan Agreement; and
(p) Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4. The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral. Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Transferee Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Assumption. Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to (A) a Transfer transfer of the Properties Property in their its entirety to, and the related assumption of the LoanLoan by, the Mortgage Loan and the Senior Mezzanine Loan by any Person, (B) a Transfer of the Senior Mezzanine Collateral and assumption of the Senior Mezzanine Loan and the entire Loan by any Person, or (C) a Transfer of the Collateral and assumption of the entire Loan by any Person (any such Person shall be hereinafter referred to as a “Transferee”"TRANSFEREE") provided that each of the following terms and conditions are satisfied:
(a) no Event of Default shall be continuing at the time the notice in clause (b) below has occurred and is received by Lender or at the time of the Transfercontinuing;
(b) Borrower shall deliver have (i) delivered written notice to Lender of the terms of such proposed Transfer prospective transfer not less than sixty (60) days before the date on which such Transfer transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in evaluating an initial extension the amount of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer$5,000. Lender shall have the right to approve or disapprove the proposed Transfer transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed Transfertransfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertiesProperty, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s 's and its principals’ ' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s 's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all of the direct or indirect ownership interests in the Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable than the pledge of the Collateral under the Pledge Agreement);
(c) Borrower shall pay have paid to Lender, concurrently with the closing of such proposed Transfertransfer, (i) a non non-refundable assumption fee in an amount equal to one-half of one percent (0.5%) of the then outstanding principal balance of the Note, and (ii) all out of reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency ' fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(d) to the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of all of the Senior Mezzanine Collateral, Transferee shall assume all of the obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; and (C) to the extent the Permitted Transfer is a Transfer of all of the Collateral, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lendertransfer;
(i) Transferee shall (A) if such Permitted Transfer is a Transfer of the Properties, assume have assumed and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 of the Mortgage Loan Agreement, (B) if such Permitted Transfer is a Transfer of the Senior Mezzanine Collateral, assume and agree to pay the Debt (as defined in the Senior Mezzanine Loan Agreement) as and when due and shall assume all other obligations of Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents subject to the provisions of Article 15 of the Senior Mezzanine Loan Agreement and, (C) if such Permitted Transfer is a Transfer of the Collateral, assume and agree agreed to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfertransfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Senior Mezzanine Borrower owned by Borrower (the “Mezzanine Entities”), shall executehave executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender, assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender (a “Transferee Principal”) shall assume have assumed the obligations of Guarantor Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the closing transfer of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect Property pursuant to all acts and events first occurring or arising after the date of such Transfer; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties or the Collateral or a Transfer of the Senior Mezzanine Collateral, as applicable; provided further, in no event shall any Transferee Principal be required to have or maintain any net worth or liquidity covenant of Guarantor under the Loan Documents as a condition to such Transferthis Section 7.5;
(fe) Borrower and Transferee, without any cost to Lender, shall furnish any information reasonably requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirementslaw, and shall execute any additional documents reasonably requested by Lender;
(gf) Transferee Borrower shall deliver have delivered to Lender, without any cost or expense to Lender, a UCC such endorsements to Lender's Title Insurance Policy insuring that equity interests of all owners of fee simple or leasehold title to the Collateral are Property, as applicable, is vested in the Mezzanine Entities and such Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender reasonably may deem necessary at the time of the transfer, all in form and substance reasonably satisfactory to Lender;
(hg) Transferee shall furnish have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all documents appropriate papers evidencing Transferee’s and Mezzanine Entities’ 's organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which documents papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;
(ih) to the extent the Permitted Transfer is a Transfer of all of the Propertiesif applicable, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement in form and substance reasonably satisfactory to Lenderagreement;
(j) intentionally omitted;
(ki) Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s 's formation documents provide for the matters described in subparagraph (hg) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(lj) if required by Lender, Lender shall receive a have received confirmation in writing from the Rating Agency Confirmation;
(m) Agencies that rate the Securities to the extent effect that the Permitted Transfer transfer will not result in a qualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities if a Securitization is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (ii) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(n) intentionally omitted;
(o) the Senior Mezzanine Loan shall simultaneously be assumed by the equity owners of the Transferee in accordance with the Senior Mezzanine Loan Agreementpending; and
(pk) Borrower’s 's obligations under the purchase and contract of sale agreement pursuant to which the Transfer transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.47.5. The A consent of by Lender with respect to a Transfer transfer of the Collateral Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.4 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer Sale or Pledge of the CollateralProperty. Upon the Transfer transfer of the Collateral Property pursuant to this Section 7.47.5, Borrower and Guarantor (if a Transferee Borrower Principal has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved all of all liability under the Loan Documents for acts, events, conditions, events or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, events or circumstances are the proximate result of acts, events, conditions, events or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.
Appears in 1 contract
Sources: Loan Agreement (Ashworth Inc)