Permitted Equity Transfers. Notwithstanding the foregoing, none of the following Transfers (each a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer: (i) a Transfer by a natural person who is a member, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust; (ii) a Transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement; (iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and (iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and (v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) (in the aggregate) of the direct or indirect interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiaries; and (vi) KBS Operating Partnership, Operating LLC, KBS REIT (collectively, the “KBS Upper-Tier Entities”), and any other Person owning interests in the KBS Upper-Tier Entities, direct or indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans from, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (KBS Strategic Opportunity REIT II, Inc.)
Permitted Equity Transfers. (a) A Transfer of a direct or indirect ownership interest in Mezzanine Borrower, Mortgage Borrower or the SPE Entities that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a Rating Agency Confirmation if (i) Mezzanine Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) no more than forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower,, Senior Mezzanine Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or any other SPE Entity is being Transferred (in the aggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, and (v) the Principal Control Persons collectively retain Control of Mortgage Borrower, Senior Mezzanine Borrower, and Mezzanine Borrower and the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower and the SPE Entities.
(b) Notwithstanding anything herein to the foregoingcontrary, none of the following Transfers shall not require the prior written consent of or, except as otherwise required in clause (each y) below, notice to Mezzanine Lender or a “Permitted Transfer”Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Mezzanine Lender shall be deemed to be a Prohibited Equity Transferreceive prior written notice:
(i) a Transfer by a natural person who is a memberof (A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee (B) any interests in the parent entities of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustowners;
(ii) a Transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of equity interests in Borrower Member and Operating any Guarantor, Sponsor or Master Lessee Member between the members in conjunction with or after an initial public offering of Borrower Member and Operating Lessee Member; shares, provided that following any from and after the consummation of such Transfer(s)initial public offering, no Person or group other than the Principal Control Persons and Principal Investors (iA) Guarantor continues to ownshall have acquired beneficial ownership, directly or indirectly, not less of equity interests in Master Lessee representing more than ninety twenty-five percent (9025%) of the interests voting power and economic interest in Borrower and Operating Master Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity where such ownership represents a greater amount of the ultimate indirect owners of each of Borrower and Operating voting power or economic interest in Master Lessee than that which is identical and the percentage interests then owned by such ultimate indirect owners the Principal Control Persons and Principal Investors in each aggregate, or (B) shall have obtained the power (whether or not exercised) to elect a majority of Borrower and Operating Lessee is identical; andthe members of the board of directors (or similar governing body) of Master Lessee;
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(viii) Transfers of direct or indirect interests in Guarantor the Guarantors (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, any combination of one or more Guarantors or a Delaware limited liability companyGuarantor with Sponsor), and KBS REIT); provided KBS REIT continues to ownthe pledge or grant of security interests, directly or indirectly, one hundred percent (100%) as permitted under the terms of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) (in the aggregate) organizational documents for each of the direct or indirect interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesGuarantors; and
(viiv) KBS Operating Partnershipthe pledge, Operating LLChypothecation, KBS REIT encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee to an Approved Bank as security for the Revolving/Term Credit Facility (collectively, the “KBS Upper-Tier EntitiesRevolving/Term Credit Facility Lien”), and any other Person owning interests provided that the Revolving/Term Credit Facility Lien shall not be foreclosed upon unless (A) the ownership of such direct interest in the KBS Upper-Tier Entities, direct or indirect, Master Lessee following such foreclosure shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries held by an Approved Bank or a Qualified Transferee and to obtain loans fromcomply with all Gaming Laws and (B) such foreclosure shall not create or cause a Default or Event of Default hereunder (provided that the occurrence of such foreclosure, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under clause (A) is complied with, shall not of itself constitute a Secondary Loan resulting Default or Event of Default). For purposes solely of this Section 8.5(b)(iv), the term “Qualified Transferee” shall have the meaning set forth in a foreclosure Section 1.1 except that the “$2 Billion” figure in clause (b) of the pledged interests definition in Section 1.1 is replaced with “$1 Billion.” Notwithstanding the foregoing, Mezzanine Borrower shall be not, and shall not permit or suffer any person to, pledge, hypothecate, encumber or grant a Default under the Loan Documentssecurity interest in or lien on any direct or, except as set forth in this Section 8.5, indirect interest in Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or any SPE Entities, any Guarantor or Sponsor.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Permitted Equity Transfers. Notwithstanding anything herein to the foregoingcontrary, none of but subject to Section 8.1(b), the following Transfers shall not require the prior written consent of Lender:
(each a) the pledge of the Equity Interests in Master Lease Guarantor or any of its Subsidiaries pursuant to the terms of the Master Lease Guarantor Facility or a foreclosure (or transfer in lieu of thereof) of such Equity Interests in Master Lease Guarantor or any of its Subsidiaries resulting from the exercise of remedies as set forth in the Master Lease Guarantor Facility (an “Opco Equity Foreclosure”);
(b) a Transfer (but not a pledge or encumbrance) by (i) Guarantor or any then-existing Intermediate HoldCo Entity of 100% (and not less than 100%) of its direct Equity Interests in HoldCo or any then-existing Intermediate HoldCo Entity to a new Intermediate HoldCo Entity, provided that the Base Transfer Conditions have been satisfied, or (ii) HoldCo or any then-existing Intermediate PropCo Entity of 100% (and not less than 100%) of its direct Equity Interests in PropCo or any then-existing Intermediate PropCo to a new Intermediate PropCo Entity, provided that the Base Transfer Conditions have been satisfied;
(c) a Transfer of direct or indirect Equity Interests in any Sponsor;
(d) a Qualifying IPO of any IPO Entity, or any other Transfer (but not a pledge or encumbrance) of the direct or indirect Equity Interests in Guarantor, Master Lease Guarantor, HoldCo, any Intermediate Entity or PropCo (such Person in which such Equity Interests are transferred by means other than a Qualifying IPO, a “Permitted TransferRelated Holding Entity”) shall be deemed to be a Prohibited Equity Transfer), provided that the following conditions have been satisfied:
(i) a the Base Transfer by a natural person who is a member, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustConditions have been satisfied;
(ii) with respect to (A) any such Transfer other than a Qualifying IPO, subsequent to such Transfer, (1) Permitted Holders or in the case of a Transfer by devise to a Permitted Transferee, the related Permitted Transferee (or descent any combination of one or by operation more of law upon them, subject to the death limitations in the definition of Permitted Holders), directly or indirectly own no less than fifty-one percent (51%) of the Equity Interests in, and Control, the Related Holding Entity (and, through ownership of the Related Holding Entity, in each direct or indirect Subsidiary of the Related Holding Entity) and (2) Permitted Holders or in the case of a memberTransfer to a Permitted Transferee, partner the related Permitted Transferee (or shareholder any combination of one or more of them, subject to the limitations in the definition of Permitted Holders), directly or indirectly own no less than fifty-one percent (51%) of the Equity Interests in, and Control, PropCo, PRP, Mortgage Borrower, Borrower and Second Mezzanine Borrower, and (B) any Qualifying IPO of the Master Lease Guarantor, Permitted Holders or in the case of a Restricted Party where prior Transfer to a Permitted Transferee, the related Permitted Transferee (or any combination of one or more of them, subject to the limitations in the definition of Permitted Holders), directly or indirectly own no less than fifty-one percent (51%) of the Equity Interests in, and Control, PropCo, PRP, Mortgage Borrower, Borrower and Second Mezzanine Borrower (the foregoing requirements of (A) and (B) above, as applicable, the “Minimum Ownership/Control Requirements”), and (C) any Qualifying IPO, following such Transfer does not result in a Default under this Agreement;Qualifying IPO, the Post-IPO Control Requirements shall be satisfied; and
(iii) if subsequent to any Qualifying IPO or any other Transfer, the Guarantor Asset Covenant would no longer be satisfied, then as an additional condition to completing any such Qualifying IPO or other such Transfer, the Guarantor Net Worth Requirements must be satisfied in accordance with Section 8.5; or
(e) upon and subsequent to a Qualifying IPO of any IPO Entity, Transfers (whether direct or indirect and whether in open market transactions or otherwise) of interests the shares in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; such IPO Entity, provided that following no Post-IPO Change of Control occurs; or
(f) a Transfer (but not a pledge or encumbrance) of direct or indirect Equity Interests in any such Transfer(s)Permitted Transferee, provided that (i) Guarantor continues subsequent to ownsuch Transfer, directly or indirectly, not less than ninety percent (90%) of such Person shall continue to satisfy the interests criteria for a Permitted Transferee set forth in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreementdefinition thereof, and (ii) the identity of the ultimate if such Permitted Transferee holds a direct Equity Interest in any Lower Tier Entity and such Transfer shall cause any transferee, together with its Affiliates, to acquire indirect owners of each of Equity Interests in Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
aggregating more than forty-nine percent (iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”49%), provided or to increase its indirect Equity Interests in Borrower from an amount that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to is less than forty-nine percent (49%) to an amount that is greater than forty-nine percent (in the aggregate49%), an Additional Non-Consolidation Opinion is provided to Lender as a condition to such Transfer; or
(g) upon and subsequent to a Qualifying IPO of the an Upper Tier Entity, Transfers of direct or indirect interests Equity Interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheldsuch Upper Tier Entity, provided that no Post-IPO Change of Control occurs; or
(ih) not less than fifteen (15) Business Days prior the pledge of any direct or indirect Equity Interest in Borrower or Mortgage Borrower pursuant to the date Mezzanine Loan Documents and the exercise of, and any Transfer that results from the exercise of, any rights or remedies that any Mezzanine Lender may have under the Mezzanine Loan Documents (but, for clarification, this Section 8.4(h) shall not permit an assignment in lieu of foreclosure). Borrower shall be responsible for the proposed Transfer, Borrower delivers a written request to payment of and shall pay or reimburse Lender for all of Lender’s consent to such Transferreasonable out-of-pocket fees, which request shall specifically identify the proposed Non-Affiliate Transfereecosts and expenses, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transfereereasonable attorneys’ fees and costs, financial statements of such Non-Affiliate Transferee actually incurred by Lender in connection with the review, negotiation and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiaries; and
(vi) KBS Operating Partnership, Operating LLC, KBS REIT (collectively, the “KBS Upper-Tier Entities”), and any other Person owning interests in the KBS Upper-Tier Entities, direct or indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans from, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure implementation of the pledged interests shall be a Default under the Loan Documentsprovisions and documentation provided for in this Section 8.4.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Bloomin' Brands, Inc.)
Permitted Equity Transfers. Notwithstanding anything herein to the foregoingcontrary, none of but subject to Section 8.1(b), the following Transfers shall not require the prior written consent of Lender:
(each a) the pledge of the Equity Interests in Master Lease Guarantor or any of its Subsidiaries pursuant to the terms of the Master Lease Guarantor Facility or a foreclosure (or transfer in lieu of thereof) of such Equity Interests in Master Lease Guarantor or any of its Subsidiaries resulting from the exercise of remedies as set forth in the Master Lease Guarantor Facility (an “Opco Equity Foreclosure”);
(b) a Transfer (but not a pledge or encumbrance) by (i) Guarantor or any then-existing Intermediate HoldCo Entity of 100% (and not less than 100%) of its direct Equity Interests in HoldCo or any then-existing Intermediate HoldCo Entity to a new Intermediate HoldCo Entity, provided that the Base Transfer Conditions have been satisfied, or (ii) HoldCo or any then-existing Intermediate PropCo Entity of 100% (and not less than 100%) of its direct Equity Interests in PropCo or any then-existing Intermediate PropCo to a new Intermediate PropCo Entity, provided that the Base Transfer Conditions have been satisfied;
(c) a Transfer of direct or indirect Equity Interests in any Sponsor;
(d) a Qualifying IPO of any IPO Entity, or any other Transfer (but not a pledge or encumbrance) of the direct or indirect Equity Interests in Guarantor, Master Lease Guarantor, HoldCo, any Intermediate Entity or PropCo (such Person in which such Equity Interests are transferred by means other than a Qualifying IPO, a “Permitted TransferRelated Holding Entity”) shall be deemed to be a Prohibited Equity Transfer), provided that the following conditions have been satisfied:
(i) a the Base Transfer by a natural person who is a member, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustConditions have been satisfied;
(ii) with respect to (A) any such Transfer other than a Qualifying IPO, subsequent to such Transfer, (1) Permitted Holders or in the case of a Transfer by devise to a Permitted Transferee, the related Permitted Transferee (or descent any combination of one or by operation more of law upon them, subject to the death limitations in the definition of Permitted Holders), directly or indirectly own no less than fifty-one percent (51%) of the Equity Interests in, and Control, the Related Holding Entity (and, through ownership of the Related Holding Entity, in each direct or indirect Subsidiary of the Related Holding Entity) and (2) Permitted Holders or in the case of a memberTransfer to a Permitted Transferee, partner the related Permitted Transferee (or shareholder any combination of one or more of them, subject to the limitations in the definition of Permitted Holders), directly or indirectly own no less than fifty-one percent (51%) of the Equity Interests in, and Control, PropCo, PRP, each Senior Borrower and Borrower, and (B) any Qualifying IPO of the Master Lease Guarantor, Permitted Holders or in the case of a Restricted Party where prior Transfer to a Permitted Transferee, the related Permitted Transferee (or any combination of one or more of them, subject to the limitations in the definition of Permitted Holders), directly or indirectly own no less than fifty-one percent (51%) of the Equity Interests in, and Control, PropCo, PRP, each Senior Borrower and Borrower (the foregoing requirements of (A) and (B) above, as applicable, the “Minimum Ownership/Control Requirements”), and (C) any Qualifying IPO, following such Transfer does not result in a Default under this Agreement;Qualifying IPO, the Post-IPO Control Requirements shall be satisfied; and
(iii) if subsequent to any Qualifying IPO or any other Transfer, the Guarantor Asset Covenant would no longer be satisfied, then as an additional condition to completing any such Qualifying IPO or other such Transfer, the Guarantor Net Worth Requirements must be satisfied in accordance with Section 8.5; or
(e) upon and subsequent to a Qualifying IPO of any IPO Entity, Transfers (whether direct or indirect and whether in open market transactions or otherwise) of interests the shares in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; such IPO Entity, provided that following no Post-IPO Change of Control occurs; or
(f) a Transfer (but not a pledge or encumbrance) of direct or indirect Equity Interests in any such Transfer(s)Permitted Transferee, provided that (i) Guarantor continues subsequent to ownsuch Transfer, directly or indirectly, not less than ninety percent (90%) of such Person shall continue to satisfy the interests criteria for a Permitted Transferee set forth in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreementdefinition thereof, and (ii) the identity of the ultimate if such Permitted Transferee holds a direct Equity Interest in any Lower Tier Entity and such Transfer shall cause any transferee, together with its Affiliates, to acquire indirect owners of each of Equity Interests in Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
aggregating more than forty-nine percent (iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”49%), provided or to increase its indirect Equity Interests in Borrower from an amount that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to is less than forty-nine percent (49%) to an amount that is greater than forty-nine percent (in the aggregate49%), an Additional Non-Consolidation Opinion is provided to Lender as a condition to such Transfer; or
(g) upon and subsequent to a Qualifying IPO of the an Upper Tier Entity, Transfers of direct or indirect interests Equity Interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheldsuch Upper Tier Entity, provided that no Post-IPO Change of Control occurs; or
(ih) not less than fifteen (15) Business Days prior the pledge of any direct or indirect Equity Interest any Senior Borrower pursuant to the date Loan Documents or the First Mezzanine Loan Documents and the exercise of, and any Transfer that results from the exercise of, any rights or remedies that Lender or First Mezzanine Lender may have under the Loan Documents or the First Mezzanine Loan Documents (but, for clarification, this Section 8.4(h) shall not permit an assignment in lieu of foreclosure). Borrower shall be responsible for the proposed Transfer, Borrower delivers a written request to payment of and shall pay or reimburse Lender for all of Lender’s consent to such Transferreasonable out-of-pocket fees, which request shall specifically identify the proposed Non-Affiliate Transfereecosts and expenses, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transfereereasonable attorneys’ fees and costs, financial statements of such Non-Affiliate Transferee actually incurred by Lender in connection with the review, negotiation and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiaries; and
(vi) KBS Operating Partnership, Operating LLC, KBS REIT (collectively, the “KBS Upper-Tier Entities”), and any other Person owning interests in the KBS Upper-Tier Entities, direct or indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans from, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure implementation of the pledged interests shall be a Default under the Loan Documentsprovisions and documentation provided for in this Section 8.4.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Bloomin' Brands, Inc.)
Permitted Equity Transfers. Notwithstanding the foregoing, none (a) A Transfer (but not a pledge or encumbrance) of the following Transfers (each an indirect beneficial interest in Fourth Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer:
Rating Agency Confirmation if (i) a Transfer by a natural person who is a memberMezzanine Lender receives thirty (30) days prior written notice thereof, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust;
(ii) a Transfer by devise or descent or by operation immediately prior to such Transfer, no Event of law upon the death of a memberDefault shall have occurred and be continuing, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less no more than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower, Mezzanine Borrower, any Senior Mezzanine Borrower, Junior Mezzanine Borrower, HoldCo, or any SPE Entity is being Transferred (in the aggregateaggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, (v) HoldCo continues to own 100% of the ownership interests in Fourth Mezzanine Borrower, Fourth Mezzanine Borrower continues to hold 100% of the ownership interests in Mezzanine Borrower, Mezzanine Borrower continues to hold 100% of the ownership interests in Second Mezzanine Borrower, Second Mezzanine Borrower continues to hold 100% of the ownership interests in First Mezzanine Borrower, and First Mezzanine Borrower continues to own 100% of the ownership interests in Mortgage Borrower, (vi) Guarantor retains Control of Mortgage Borrower, Master Lessee, HoldCo, Mezzanine Borrower, each Senior Mezzanine Borrower, and each Junior Mezzanine Borrower, and Mortgage Borrower and continues to own, directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Master Lessee, and (vii) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease, and (viii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect ownership interests in Master Lessee or Guarantor is being Transferred (in the aggregate of all such Transfers).
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Mezzanine Lender:
(i) a Transfer of interests in any Sponsor,
(ii) a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee and provided Borrower complies with Section 8.5(a) and (b) (and thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) a Transfer (but not a pledge or encumbrance in the case of any Transfer of interests in HoldCo) of any interests in Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) ▇▇▇▇ Capital Partners, LLC;
(2) Kohlberg Kravis ▇▇▇▇▇▇▇ & Co.;
(3) Vornado Realty, L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies,
(7) a transferee described in clause (iv) or (v) below;
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to or transferee of all or substantially all of the assets of any of the foregoing, (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty one percent (51%) of such transferee is owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance;
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty one percent (51%) percent of the direct or indirect interests in Guarantor to HoldCo being owned by a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesSponsor; and
(vivii) KBS Operating Partnershipa Transfer of direct or indirect interests in any Person that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (eg., Operating LLCVornado Realty Trust).
(c) Notwithstanding the foregoing, KBS REIT (collectively, the “KBS Upper-Tier Entities”)Mezzanine Borrower shall not, and shall not permit or suffer any other Person owning interests person to, pledge, hypothecate, encumber or grant a security interest in the KBS Upper-Tier Entitiesor lien on any direct or, direct or except as set forth in this Section 8.5, indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans frominterest in Mortgage Borrower, or incur indebtedness toMezzanine Borrower, Mezzanine Borrower, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct Senior Mezzanine Borrower, any Junior Mezzanine Borrower or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan DocumentsSPE Entities.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Permitted Equity Transfers. Notwithstanding anything herein to the foregoingcontrary, none of but subject to Section 8.1(b), the following Transfers shall not require the prior written consent of Lender or a Rating Agency Confirmation:
(each a) the pledge of the Equity Interests in Master Lease Guarantor or any of its Subsidiaries pursuant to the terms of the Master Lease Guarantor Facility or a foreclosure (or transfer in lieu of thereof) of such Equity Interests in Master Lease Guarantor or any of its Subsidiaries resulting from the exercise of remedies as set forth in the Master Lease Guarantor Facility (an “Opco Equity Foreclosure”);
(b) a Transfer (but not a pledge or encumbrance) by (i) Guarantor or any then-existing Intermediate HoldCo Entity of 100% (and not less than 100%) of its direct Equity Interests in HoldCo or any then-existing Intermediate HoldCo Entity to a new Intermediate HoldCo Entity, provided that the Base Transfer Conditions have been satisfied, or (ii) HoldCo or any then-existing Intermediate PropCo Entity of 100% (and not less than 100%) of its direct Equity Interests in PropCo or any then-existing Intermediate PropCo to a new Intermediate PropCo Entity, provided that the Base Transfer Conditions have been satisfied;
(c) a Transfer of direct or indirect Equity Interests in any Sponsor;
(d) a Qualifying IPO of any IPO Entity, or any other Transfer (but not a pledge or encumbrance) of the direct or indirect Equity Interests in Guarantor, Master Lease Guarantor, HoldCo, any Intermediate Entity or PropCo (such Person in which such Equity Interests are transferred by means other than a Qualifying IPO, a “Permitted TransferRelated Holding Entity”) shall be deemed to be a Prohibited Equity Transfer), provided that the following conditions have been satisfied:
(i) a the Base Transfer by a natural person who is a member, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustConditions have been satisfied;
(ii) with respect to (A) any such Transfer other than a Qualifying IPO, subsequent to such Transfer, (1) Permitted Holders or in the case of a Transfer by devise to a Permitted Transferee, the related Permitted Transferee (or descent any combination of one or by operation more of law upon them, subject to the death limitations in the definition of Permitted Holders), directly or indirectly own no less than fifty-one percent (51%) of the Equity Interests in, and Control, the Related Holding Entity (and, through ownership of the Related Holding Entity, in each direct or indirect Subsidiary of the Related Holding Entity) and (2) Permitted Holders or in the case of a memberTransfer to a Permitted Transferee, partner the related Permitted Transferee (or shareholder any combination of one or more of them, subject to the limitations in the definition of Permitted Holders), directly or indirectly own no less than fifty-one percent (51%) of the Equity Interests in, and Control, PropCo, PRP, each Mezzanine Borrower and Borrower, and (B) any Qualifying IPO of the Master Lease Guarantor, Permitted Holders or in the case of a Restricted Party where prior Transfer to a Permitted Transferee, the related Permitted Transferee, (or any combination of one or more of them, subject to the limitations in the definition of Permitted Holders), directly or indirectly own no less than fifty-one percent (51%) of the Equity Interests in, and Control, PropCo, PRP, each Mezzanine Borrower and Borrower (the foregoing requirements of (A) and (B) above, as applicable, the “Minimum Ownership/Control Requirements”), and (C) any Qualifying IPO, following such Transfer does not result in a Default under this Agreement;Qualifying IPO, the Post-IPO Control Requirements shall be satisfied; and
(iii) if subsequent to any Qualifying IPO or any other Transfer, the Guarantor Asset Covenant would no longer be satisfied, then as an additional condition to completing any such Qualifying IPO or other such Transfer, the Guarantor Net Worth Requirements must be satisfied in accordance with Section 8.5; or
(e) upon and subsequent to a Qualifying IPO of any IPO Entity, Transfers (whether direct or indirect and whether in open market transactions or otherwise) of interests the shares in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; such IPO Entity, provided that following no Post-IPO Change of Control occurs; or
(f) a Transfer (but not a pledge or encumbrance) of direct or indirect Equity Interests in any such Transfer(s)Permitted Transferee, provided that (i) Guarantor continues subsequent to ownsuch Transfer, directly or indirectly, not less than ninety percent (90%) of such Person shall continue to satisfy the interests criteria for a Permitted Transferee set forth in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreementdefinition thereof, and (ii) the identity of the ultimate if such Permitted Transferee holds a direct Equity Interest in any Lower Tier Entity and such Transfer shall cause any transferee, together with its Affiliates, to acquire indirect owners of each of Equity Interests in Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
aggregating more than forty-nine percent (iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”49%), provided or to increase its indirect Equity Interests in Borrower from an amount that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to is less than forty-nine percent (49%) to an amount that is greater than forty-nine percent (in the aggregate49%), an Additional Non-Consolidation Opinion is provided to Lender as a condition to such Transfer;
(g) upon and subsequent to a Qualifying IPO of the an Upper Tier Entity, Transfers of direct or indirect interests Equity Interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheldsuch Upper Tier Entity, provided that no Post-IPO Change of Control occurs; or
(ih) not less than fifteen (15) Business Days prior the pledge of any direct or indirect Equity Interest in Borrower or First Mezzanine Borrower pursuant to the date Mezzanine Loan Documents and the exercise of, and any Transfer that results from the exercise of, any rights or remedies that any Mezzanine Lender may have under the Mezzanine Loan Documents. Borrower shall be responsible for the payment of the proposed Transfer, Borrower delivers a written request to and shall pay or reimburse Lender for all of Lender’s consent to such Transferreasonable out-of-pocket fees, which request shall specifically identify the proposed Non-Affiliate Transfereecosts and expenses, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee reasonable attorneys’ fees and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiaries; and
(vi) KBS Operating Partnership, Operating LLC, KBS REIT (collectively, the “KBS Upper-Tier Entities”), costs and any other Person owning interests Rating Agency fees and expenses, actually incurred by Lender in connection with the KBS Upper-Tier Entitiesreview, direct or indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries negotiation and to obtain loans from, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure implementation of the pledged interests shall be a Default under the Loan Documentsprovisions and documentation provided for in this Section 8.4.
Appears in 1 contract
Sources: Loan and Security Agreement (Bloomin' Brands, Inc.)
Permitted Equity Transfers. Notwithstanding (a) A Transfer of an ownership interest in Mezzanine Borrower or any Junior Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a Rating Agency Confirmation if all of the foregoingfollowing conditions are satisfied with respect to such Transfer: (i) Mezzanine Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) none of the direct ownership interests in either of Mortgage Borrower or Senior Mezzanine Borrower is being Transferred, (iv) no more than forty-nine percent (49%) of the ownership interests in Mezzanine Borrower or any Junior Mezzanine Borrower is being Transferred (in the aggregate of all such Transfers), (v) the transferee is not a Disqualified Transferee, (vi) the Principal Control Persons collectively retain Control of Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower and any Junior Mezzanine Borrower, and (vii) the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower and any Junior Mezzanine Borrower.
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of or, except as otherwise required in clause (each y) below, notice to Mezzanine Lender or a “Permitted Transfer”Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Mezzanine Lender shall be deemed to be a Prohibited Equity Transferreceive prior written notice:
(i) a Transfer by a natural person who is a memberof (A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee (B) any interests in the parent entities of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustowners;
(ii) a Transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of equity interests in Borrower Member and Operating any Guarantor, Sponsor or Master Lessee Member between the members in conjunction with or after an initial public offering of Borrower Member and Operating Lessee Member; shares, provided that following any from and after the consummation of such Transfer(s)initial public offering, no Person or group other than the Principal Control Persons and Principal Investors (iA) Guarantor continues to ownshall have acquired beneficial ownership, directly or indirectly, not less of equity interests in Master Lessee representing more than ninety twenty-five percent (9025%) of the interests voting power and economic interest in Borrower and Operating Master Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity where such ownership represents a greater amount of the ultimate indirect owners of each of Borrower and Operating voting power or economic interest in Master Lessee than that which is identical and the percentage interests then owned by such ultimate indirect owners the Principal Control Persons and Principal Investors in each aggregate, or (B) shall have obtained the power (whether or not exercised) to elect a majority of Borrower and Operating Lessee is identical; andthe members of the board of directors (or similar governing body) of Master Lessee;
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(viii) Transfers of direct or indirect interests in Guarantor the Guarantors (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, any combination of one or more Guarantors or a Delaware limited liability companyGuarantor with Sponsor), and KBS REIT); provided KBS REIT continues to ownthe pledge or grant of security interests, directly or indirectly, one hundred percent (100%) as permitted under the terms of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) (in the aggregate) organizational documents for each of the direct or indirect interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesGuarantors; and
(viiv) KBS Operating Partnershipthe pledge, Operating LLChypothecation, KBS REIT encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee to an Approved Bank as security for the Revolving/Term Credit Facility (collectively, the “KBS Upper-Tier EntitiesRevolving/Term Credit Facility Lien”), and any other Person owning interests provided that the Revolving/Term Credit Facility Lien shall not be foreclosed upon unless (A) the ownership of such direct interest in the KBS Upper-Tier Entities, direct or indirect, Master Lessee following such foreclosure shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries held by an Approved Bank or a Qualified Transferee and to obtain loans fromcomply with all Gaming Laws and (B) such foreclosure shall not create or cause a Default or Event of Default hereunder (provided that the occurrence of such foreclosure, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under clause (A) is complied with, shall not of itself constitute a Secondary Loan resulting Default or Event of Default). For purposes solely of this Section 8.5(b)(iv), the term “Qualified Transferee” shall have the meaning set forth in a foreclosure Section 1.1 except that the “$2 Billion” figure in clause (b) of the pledged interests definition in Section 1.1 is replaced with “$1 Billion.” Notwithstanding the foregoing, Mezzanine Borrower shall be not, and shall not permit or suffer any person to, pledge, hypothecate, encumber or grant a Default under the Loan Documentssecurity interest in or lien on any direct or, except as set forth in this Section 8.5, indirect interest in Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or any SPE Entities, any Guarantor or Sponsor.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Permitted Equity Transfers. Notwithstanding the foregoing, none A Transfer (but not a pledge or encumbrance) of the following Transfers (each an indirect beneficial interest in Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer:
Rating Agency Confirmation if (i) a Transfer by a natural person who is a memberMezzanine Lender receives thirty (30) days prior written notice thereof, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust;
(ii) a Transfer by devise or descent or by operation immediately prior to such Transfer, no Event of law upon the death of a memberDefault shall have occurred and be continuing, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less no more than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower, Mezzanine Borrower, any Senior Mezzanine Borrower, HoldCo, or any SPE Entity is being Transferred (in the aggregateaggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, (v) HoldCo continues to own 100% of the ownership interests in Mezzanine Borrower and Mezzanine Borrower continues to own 100% of the ownership interest in Borrower, (vi) Guarantor retains Control of Mortgage Borrower, Master Lessee, HoldCo, Mezzanine Borrower, and each Senior Mezzanine Borrower, and Mortgage Borrower and continues to own, directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Master Lessee, (vii) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease, and (viii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect ownership interests in Master Lessee or Guarantor is being Transferred (in the aggregate of all such Transfers).
(a) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Mezzanine Lender:
(i) a Transfer of interests in any Sponsor,
(ii) a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee and provided Borrower complies with Section 8.5(a) and (b) (and thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) a Transfer (but not a pledge or encumbrance in the case of any Transfer of interests in HoldCo) of any interests in Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) ▇▇▇▇ Capital Partners, LLC;
(2) Kohlberg Kravis ▇▇▇▇▇▇▇ & Co.;
(3) Vornado Realty, L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies,
(7) a transferee described in clause (iv) or (v) below; and
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to or transferee of all or substantially all of the assets of any of the foregoing, (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty-one percent (51%) of such transferee is owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance;
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty-one percent (51%) percent of the direct or indirect interests in Guarantor to HoldCo being owned by a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesSponsor; and
(vivii) KBS Operating Partnershipa Transfer of direct or indirect interests in any Person that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (e.g., Operating LLCVornado Realty Trust).
(b) Notwithstanding the foregoing, KBS REIT (collectively, the “KBS Upper-Tier Entities”)Mezzanine Borrower shall not, and shall not permit or suffer any other Person owning interests person to, pledge, hypothecate, encumber or grant a security interest in the KBS Upper-Tier Entitiesor lien on any direct or, direct or except as set forth in this Section 8.5, indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans frominterest in Mortgage Borrower, Mezzanine Borrower, any Senior Mezzanine Borrower, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan DocumentsSPE Entities.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Permitted Equity Transfers. Notwithstanding the foregoing, none (a) A Transfer of an ownership interest in Borrower or any Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Lender’s prior written consent or a Rating Agency Confirmation if all of the following conditions are satisfied with respect to such Transfer: (i) Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) no more than forty-nine percent (49%) of the ownership interests in Borrower or any Mezzanine Borrower is being Transferred (in the aggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, (v) the Principal Control Persons collectively retain Control of Borrower and Mezzanine Borrower, and (vi) the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Borrower and Mezzanine Borrower.
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of or, except as otherwise required in clause (each y) below, notice to Lender or a “Permitted Transfer”Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Lender shall be deemed to be a Prohibited Equity Transferreceive prior written notice:
(i) a Transfer by a natural person who is a memberof (A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee (B) any interests in the parent entities of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustowners;
(ii) a Transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of equity interests in Borrower Member and Operating any Guarantor, Sponsor or Master Lessee Member between the members in conjunction with or after an initial public offering of Borrower Member and Operating Lessee Member; shares, provided that following any from and after the consummation of such Transfer(s)initial public offering, no Person or group other than the Principal Control Persons and Principal Investors (iA) Guarantor continues to ownshall have acquired beneficial ownership, directly or indirectly, not less of equity interests in Master Lessee representing more than ninety twenty-five percent (9025%) of the interests voting power and economic interest in Borrower and Operating Master Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity where such ownership represents a greater amount of the ultimate indirect owners of each of Borrower and Operating voting power or economic interest in Master Lessee than that which is identical and the percentage interests then owned by such ultimate indirect owners the Principal Control Persons and Principal Investors in each aggregate, or (B) shall have obtained the power (whether or not exercised) to elect a majority of Borrower and Operating Lessee is identical; andthe members of the board of directors (or similar governing body) of Master Lessee;
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(viii) Transfers of direct or indirect interests in Guarantor the Guarantors (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, any combination of one or more Guarantors or a Delaware limited liability companyGuarantor with Sponsor), and KBS REIT); provided KBS REIT continues to ownthe pledge or grant of security interests, directly or indirectly, one hundred percent (100%) as permitted under the terms of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) (in the aggregate) organizational documents for each of the direct or indirect interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesGuarantors; and
(viiv) KBS Operating Partnershipthe pledge, Operating LLChypothecation, KBS REIT encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee to an Approved Bank as security for the Revolving/Term Credit Facility (collectively, the “KBS Upper-Tier EntitiesRevolving/Term Credit Facility Lien”), and any other Person owning interests provided that the Revolving/Term Credit Facility Lien shall not be foreclosed upon unless (A) the ownership of such direct interest in the KBS Upper-Tier Entities, direct or indirect, Master Lessee following such foreclosure shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries held by an Approved Bank or a Qualified Transferee and to obtain loans fromcomply with all Gaming Laws and (B) such foreclosure shall not create or cause a Default or Event of Default hereunder (provided that the occurrence of such foreclosure, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under clause (A) is complied with, shall not of itself constitute a Secondary Loan resulting Default or Event of Default). For purposes solely of this Section 8.5(b)(iv), the term “Qualified Transferee” shall have the meaning set forth in a foreclosure Section 1.1 except that the “$2 Billion” figure in clause (b) of the pledged interests definition in Section 1.1 is replaced with “$1 Billion.” Notwithstanding the foregoing, Borrower shall be not, and shall not permit or suffer any person to, pledge, hypothecate, encumber or grant a Default under the Loan Documentssecurity interest in or lien on any direct or, except as set forth in this Section 8.5, indirect interest in Borrower, Mezzanine Borrower or any SPE Entities, any Guarantor or Sponsor.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the foregoing, none (a) A Transfer (but not a pledge or encumbrance) of the following Transfers (each an indirect beneficial interest in Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer:
Rating Agency Confirmation if (i) a Transfer by a natural person who is a memberMezzanine Lender receives thirty (30) days prior written notice thereof, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust;
(ii) a Transfer by devise or descent or by operation immediately prior to such Transfer, no Event of law upon the death of a memberDefault shall have occurred and be continuing, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less no more than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower, HoldCo, or any SPE Entity is being Transferred (in the aggregateaggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, (v) HoldCo continues to own 100% of the ownership interests in Mezzanine Borrower and Mezzanine Borrower continues to own 100% of the ownership interests in Borrower, (vi) Guarantor retains Control of Mortgage Borrower, Master Lessee, HoldCo, Mezzanine Borrower, and each Junior Mezzanine Borrower, and Mortgage Borrower and continues to own, directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Master Lessee, (vii) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease, and (viii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect ownership interests in Master Lessee or Guarantor is being Transferred (in the aggregate of all such Transfers).
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Mezzanine Lender:
(i) a Transfer of interests in any Sponsor,
(ii) a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee and provided Borrower complies with Section 8.5(a) and (b) (and thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) a Transfer (but not a pledge or encumbrance in the case of any Transfer of interests in HoldCo) of any interests in Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) ▇▇▇▇ Capital Partners, LLC;
(2) Kohlberg Kravis ▇▇▇▇▇▇▇ & Co.;
(3) Vornado Realty, L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee;
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies,
(7) a transferee described in clause (iv) or (v) below; and
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to or transferee of all or substantially all of the assets of any of the foregoing, (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty-one percent (51%) of such transferee owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance;
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty-one percent (51%) percent of the direct or indirect interests in Guarantor to HoldCo being owned by a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesSponsor; and
(vivii) KBS Operating Partnershipa Transfer of direct or indirect interests in any Person that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (e.g., Operating LLCVornado Realty Trust).
(c) Notwithstanding the foregoing, KBS REIT (collectively, the “KBS Upper-Tier Entities”)Mezzanine Borrower shall not, and shall not permit or suffer any other Person owning interests person to, pledge, hypothecate, encumber or grant a security interest in the KBS Upper-Tier Entitiesor lien on any direct or, direct or except as set forth in this Section 8.5, indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans frominterest in Mortgage Borrower, or incur indebtedness toMezzanine Borrower, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct Junior Mezzanine Borrower or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan DocumentsSPE Entities.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Permitted Equity Transfers. (a) A Transfer of a direct or indirect ownership interest in Mezzanine Borrower, Mortgage Borrower or the SPE Entities that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a Rating Agency Confirmation if (i) Mezzanine Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) no more than forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or any other SPE Entity is being Transferred (in the aggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, and (v) the Principal Control Persons collectively retain Control of Mortgage Borrower, any Senior Mezzanine Borrower, and Mezzanine Borrower and the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower and the SPE Entities.
(b) Notwithstanding anything herein to the foregoingcontrary, none of the following Transfers shall not require the prior written consent of or, except as otherwise required in clause (each y) below, notice to Mezzanine Lender or a “Permitted Transfer”Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Mezzanine Lender shall be deemed to be a Prohibited Equity Transferreceive prior written notice:
(i) a Transfer by a natural person who is a memberof (A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee (B) any interests in the parent entities of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustowners;
(ii) a Transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of equity interests in Borrower Member and Operating any Guarantor, Sponsor or Master Lessee Member between the members in conjunction with or after an initial public offering of Borrower Member and Operating Lessee Member; shares, provided that following any from and after the consummation of such Transfer(s)initial public offering, no Person or group other than the Principal Control Persons and Principal Investors (iA) Guarantor continues to ownshall have acquired beneficial ownership, directly or indirectly, not less of equity interests in Master Lessee representing more than ninety twenty-five percent (9025%) of the interests voting power and economic interest in Borrower and Operating Master Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity where such ownership represents a greater amount of the ultimate indirect owners of each of Borrower and Operating voting power or economic interest in Master Lessee than that which is identical and the percentage interests then owned by such ultimate indirect owners the Principal Control Persons and Principal Investors in each aggregate, or (B) shall have obtained the power (whether or not exercised) to elect a majority of Borrower and Operating Lessee is identical; andthe members of the board of directors (or similar governing body) of Master Lessee;
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(viii) Transfers of direct or indirect interests in Guarantor the Guarantors (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, any combination of one or more Guarantors or a Delaware limited liability companyGuarantor with Sponsor), and KBS REIT); provided KBS REIT continues to ownthe pledge or grant of security interests, directly or indirectly, one hundred percent (100%) as permitted under the terms of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) (in the aggregate) organizational documents for each of the direct or indirect interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesGuarantors; and
(viiv) KBS Operating Partnershipthe pledge, Operating LLChypothecation, KBS REIT encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee to an Approved Bank as security for the Revolving/Term Credit Facility (collectively, the “KBS Upper-Tier EntitiesRevolving/Term Credit Facility Lien”), and any other Person owning interests provided that the Revolving/Term Credit Facility Lien shall not be foreclosed upon unless (A) the ownership of such direct interest in the KBS Upper-Tier Entities, direct or indirect, Master Lessee following such foreclosure shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries held by an Approved Bank or a Qualified Transferee and to obtain loans fromcomply with all Gaming Laws and (B) such foreclosure shall not create or cause a Default or Event of Default hereunder (provided that the occurrence of such foreclosure, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under clause (A) is complied with, shall not of itself constitute a Secondary Loan resulting Default or Event of Default). For purposes solely of this Section 8.5(b)(iv), the term “Qualified Transferee” shall have the meaning set forth in a foreclosure Section 1.1 except that the “$2 Billion” figure in clause (b) of the pledged interests definition in Section 1.1 is replaced with “$1 Billion.” Notwithstanding the foregoing, Mezzanine Borrower shall be not, and shall not permit or suffer any person to, pledge, hypothecate, encumber or grant a Default under the Loan Documentssecurity interest in or lien on any direct or, except as set forth in this Section 8.5, indirect interest in Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or any SPE Entities, any Guarantor or Sponsor.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Permitted Equity Transfers. Notwithstanding (a) A Transfer of an ownership interest in Mezzanine Borrower or any Junior Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a Rating Agency Confirmation if all of the foregoingfollowing conditions are satisfied with respect to such Transfer: (i) Mezzanine Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) none of the direct ownership interests in any of Mortgage Borrower or any Senior Mezzanine Borrower is being Transferred, (iv) no more than forty-nine percent (49%) of the ownership interests in Mezzanine Borrower or any Junior Mezzanine Borrower is being Transferred (in the aggregate of all such Transfers), (v) the transferee is not a Disqualified Transferee, (vi) the Principal Control Persons collectively retain Control of Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower and any Junior Mezzanine Borrower, and (vii) the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower and any Junior Mezzanine Borrower.
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of or, except as otherwise required in clause (each y) below, notice to Mezzanine Lender or a “Permitted Transfer”Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Mezzanine Lender shall be deemed to be a Prohibited Equity Transferreceive prior written notice:
(i) a Transfer by a natural person who is a memberof (A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee (B) any interests in the parent entities of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustowners;
(ii) a Transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of equity interests in Borrower Member and Operating any Guarantor, Sponsor or Master Lessee Member between the members in conjunction with or after an initial public offering of Borrower Member and Operating Lessee Member; shares, provided that following any from and after the consummation of such Transfer(s)initial public offering, no Person or group other than the Principal Control Persons and Principal Investors (iA) Guarantor continues to ownshall have acquired beneficial ownership, directly or indirectly, not less of equity interests in Master Lessee representing more than ninety twenty-five percent (9025%) of the interests voting power and economic interest in Borrower and Operating Master Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity where such ownership represents a greater amount of the ultimate indirect owners of each of Borrower and Operating voting power or economic interest in Master Lessee than that which is identical and the percentage interests then owned by such ultimate indirect owners the Principal Control Persons and Principal Investors in each aggregate, or (B) shall have obtained the power (whether or not exercised) to elect a majority of Borrower and Operating Lessee is identical; andthe members of the board of directors (or similar governing body) of Master Lessee;
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(viii) Transfers of direct or indirect interests in Guarantor the Guarantors (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, any combination of one or more Guarantors or a Delaware limited liability companyGuarantor with Sponsor), and KBS REIT); provided KBS REIT continues to ownthe pledge or grant of security interests, directly or indirectly, one hundred percent (100%) as permitted under the terms of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) (in the aggregate) organizational documents for each of the direct or indirect interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesGuarantors; and
(viiv) KBS Operating Partnershipthe pledge, Operating LLChypothecation, KBS REIT encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee to an Approved Bank as security for the Revolving/Term Credit Facility (collectively, the “KBS Upper-Tier EntitiesRevolving/Term Credit Facility Lien”), and any other Person owning interests provided that the Revolving/Term Credit Facility Lien shall not be foreclosed upon unless (A) the ownership of such direct interest in the KBS Upper-Tier Entities, direct or indirect, Master Lessee following such foreclosure shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries held by an Approved Bank or a Qualified Transferee and to obtain loans fromcomply with all Gaming Laws and (B) such foreclosure shall not create or cause a Default or Event of Default hereunder (provided that the occurrence of such foreclosure, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under clause (A) is complied with, shall not of itself constitute a Secondary Loan resulting Default or Event of Default). For purposes solely of this Section 8.5(b)(iv), the term “Qualified Transferee” shall have the meaning set forth in a foreclosure Section 1.1 except that the “$2 Billion” figure in clause (b) of the pledged interests definition in Section 1.1 is replaced with “$1 Billion.” Notwithstanding the foregoing, Mezzanine Borrower shall be not, and shall not permit or suffer any person to, pledge, hypothecate, encumber or grant a Default under the Loan Documentssecurity interest in or lien on any direct or, except as set forth in this Section 8.5, indirect interest in Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or any SPE Entities, any Guarantor or Sponsor.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Permitted Equity Transfers. Notwithstanding the foregoing, none (a) A Transfer (but not a pledge or encumbrance) of the following Transfers (each an indirect beneficial interest in Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer:
Rating Agency Confirmation if (i) a Transfer by a natural person who is a memberMezzanine Lender receives thirty (30) days prior written notice thereof, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust;
(ii) a Transfer by devise or descent or by operation immediately prior to such Transfer, no Event of law upon the death of a memberDefault shall have occurred and be continuing, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less no more than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower, Mezzanine Borrower, any Senior Mezzanine Borrower, any Junior Mezzanine Borrower, HoldCo, or any SPE Entity is being Transferred (in the aggregateaggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, (v) HoldCo continues to own 100% of the ownership interests in Mezzanine Borrower and Mezzanine Borrower continues to own 100% of the ownership interests in Borrower, (vi) Guarantor retains Control of Mortgage Borrower, Master Lessee, HoldCo, Mezzanine Borrower, and each Junior Mezzanine Borrower, and Mortgage Borrower and continues to own, directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Master Lessee, (vii) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease, and (viii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect ownership interests in Master Lessee or Guarantor is being Transferred (in the aggregate of all such Transfers).
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Mezzanine Lender:
(i) a Transfer of interests in any Sponsor,
(ii) a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee and provided Borrower complies with Section 8.5(a) and (b) (and thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) a Transfer (but not a pledge or encumbrance in the case of any Transfer of interests in HoldCo) of any interests in Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) ▇▇▇▇ Capital Partners, LLC;
(2) Kohlberg Kravis ▇▇▇▇▇▇▇ & Co.;
(3) Vornado Realty, L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies,
(7) a transferee described in clause (iv) or (v) below; and
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to, or transferee of all or substantially all of the assets of, any of the foregoing (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty-one percent (51%) of such transferee is owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance;
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty-one percent (51%) percent of the direct or indirect interests in Guarantor to HoldCo being owned by a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesSponsor; and
(vivii) KBS Operating Partnershipa Transfer of direct or indirect interests in any Person that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (eg, Operating LLCVornado Realty Trust).
(c) Notwithstanding the foregoing, KBS REIT (collectively, the “KBS Upper-Tier Entities”)Mezzanine Borrower shall not, and shall not permit or suffer any other Person owning interests person to, pledge, hypothecate, encumber or grant a security interest in the KBS Upper-Tier Entitiesor lien on any direct or, direct or except as set forth in this Section 8.5, indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans frominterest in Mortgage Borrower, or incur indebtedness toSenior Mezzanine Borrower, Mezzanine Borrower, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct Junior Mezzanine Borrower or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan DocumentsSPE Entities.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Permitted Equity Transfers. Notwithstanding the foregoing, none (a) A Transfer (but not a pledge or encumbrance) of the following Transfers (each an indirect beneficial interest in Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Lender’s prior written consent or a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer:
Rating Agency Confirmation if (i) a Transfer by a natural person who is a memberLender receives thirty (30) days prior written notice thereof, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust;
(ii) a Transfer by devise or descent or by operation immediately prior to such Transfer, no Event of law upon the death of a memberDefault shall have occurred and be continuing, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less no more than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) of the direct or indirect ownership interests in Borrower or Mezzanine Borrower, HoldCo or any SPE Entity is being Transferred (in the aggregateaggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee (v) HoldCo continues to own 100% of the ownership interests in Mezzanine Borrower and Mezzanine Borrower continues to own 100% of the ownership interests in Borrower, (vi) Guarantor retains Control of Master Lessee, HoldCo, Mezzanine Borrower and Borrower and continues to own, directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Master Lessee, (vi) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease and (vii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect ownership interests in Master Lessee or Guarantor is being Transferred (in the aggregate of all such Transfers).
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Lender or a Rating Agency Confirmation:
(i) a Transfer of interests in any Sponsor;
(ii) a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee, provided Borrower complies with Section 8.7 (and thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) a Transfer (but not a pledge or encumbrance in the case of any Transfer of interests in HoldCo) of any interests in Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) ▇▇▇▇ Capital Partners, LLC;
(2) Kohlberg Kravis ▇▇▇▇▇▇▇ & Co.;
(3) Vornado Realty, L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee;
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies;
(7) a transferee described in clause (iv) or (v) below;
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to, or transferee of all or substantially all of the assets of, any of the foregoing (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty-one percent (51%) percent of such transferee is owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and HoldCo and any Transfer of such interests in realization upon such pledge or encumbrance;
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty-one percent (51%) percent of the direct or indirect interests in Guarantor to HoldCo being owned by a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesSponsor; and
(vivii) KBS Operating Partnershipa Transfer of direct or indirect interests in any Person that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (eg, Operating LLCVornado Realty Trust). Notwithstanding the foregoing, KBS REIT (collectively, the “KBS Upper-Tier Entities”)Borrower shall not, and shall not permit or suffer any other Person owning interests person to, pledge, hypothecate, encumber or grant a security interest in the KBS Upper-Tier Entitiesor lien on any direct or, direct or except as set forth in this Section 8.5 indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans frominterest in Borrower, Mezzanine Borrower or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan DocumentsSPE Entities.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the foregoing, none (a) A Transfer (but not a pledge or encumbrance) of the following Transfers (each an indirect beneficial interest in Fourth Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer:
Rating Agency Confirmation if (i) a Transfer by a natural person who is a memberMezzanine Lender receives thirty (30) days prior written notice thereof, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust;
(ii) a Transfer by devise or descent or by operation immediately prior to such Transfer, no Event of law upon the death of a memberDefault shall have occurred and be continuing, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less no more than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower, Mezzanine Borrower, any Senior Mezzanine Borrower, Junior Mezzanine Borrower, HoldCo, or any SPE Entity is being Transferred (in the aggregateaggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, (v) HoldCo continues to own 100% of the ownership interests in Fourth Mezzanine Borrower, Fourth Mezzanine Borrower continues to hold 100% of the ownership interests in Mezzanine Borrower, Mezzanine Borrower continues to hold 100% of the ownership interests in Second Mezzanine Borrower, Second Mezzanine Borrower continues to hold 100% of the ownership interests in First Mezzanine Borrower, and First Mezzanine Borrower continues to own 100% of the ownership interests in Mortgage Borrower, (vi) Guarantor retains Control of Mortgage Borrower, Master Lessee, HoldCo, Mezzanine Borrower, each Senior Mezzanine Borrower, and each Junior Mezzanine Borrower, and Mortgage Borrower and continues to own, directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Master Lessee, (vii) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease, and (viii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect ownership interests in Master Lessee or Guarantor is being Transferred (in the aggregate of all such Transfers).
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Mezzanine Lender:
(i) a Transfer of interests in any Sponsor,
(ii) a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee, and provided Borrower complies with Section 8.5(a) and (b) (and thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) a Transfer (but not a pledge or encumbrance in the case of any Transfer of interests in HoldCo) of any interests in Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) ▇▇▇▇ Capital Partners, LLC;
(2) Kohlberg Kravis ▇▇▇▇▇▇▇ & Co.;
(3) Vornado Realty, L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies,
(7) a transferee described in clause (iv) or (v) below; and
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to, or transferee of all or substantially all of the assets of, any of the foregoing (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty-one percent (51%) of such transferee is owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance;
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty-one percent (51%) percent of the direct or indirect interests in Guarantor to HoldCo being owned by a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesSponsor; and
(vivii) KBS Operating Partnershipa Transfer of direct or indirect interests in any Person that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (eg, Operating LLCVornado Realty Trust).
(c) Notwithstanding the foregoing, KBS REIT (collectively, the “KBS Upper-Tier Entities”)Mezzanine Borrower shall not, and shall not permit or suffer any other Person owning interests person to, pledge, hypothecate, encumber or grant a security interest in the KBS Upper-Tier Entitiesor lien on any direct or, direct or except as set forth in this Section 8.5, indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans frominterest in Mortgage Borrower, or incur indebtedness toMezzanine Borrower, Mezzanine Borrower, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct Senior Mezzanine Borrower, any Junior Mezzanine Borrower or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan DocumentsSPE Entities.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Permitted Equity Transfers. Notwithstanding (a) A Transfer of an ownership interest in Mezzanine Borrower, or any Junior Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a Rating Agency Confirmation if all of the foregoingfollowing conditions are satisfied with respect to such Transfer: (i) Mezzanine Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) none of the direct ownership interests in any of Mortgage Borrower or any Senior Mezzanine Borrower is being Transferred, (iv) no more than forty-nine percent (49%) of the ownership interests in Mezzanine Borrower or any Junior Mezzanine Borrower is being Transferred (in the aggregate of all such Transfers), (v) the transferee is not a Disqualified Transferee, (vi) the Principal Control Persons collectively retain Control of Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower, and any Junior Mezzanine Borrower, and (vii) the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower, and any Junior Mezzanine Borrower.
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of or, except as otherwise required in clause (each y) below, notice to Mezzanine Lender or a “Permitted Transfer”Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Mezzanine Lender shall be deemed to be a Prohibited Equity Transferreceive prior written notice:
(i) a Transfer by a natural person who is a memberof (A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee (B) any interests in the parent entities of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustowners;
(ii) a Transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of equity interests in Borrower Member and Operating any Guarantor, Sponsor or Master Lessee Member between the members in conjunction with or after an initial public offering of Borrower Member and Operating Lessee Member; shares, provided that following any from and after the consummation of such Transfer(s)initial public offering, no Person or group other than the Principal Control Persons and Principal Investors (iA) Guarantor continues to ownshall have acquired beneficial ownership, directly or indirectly, not less of equity interests in Master Lessee representing more than ninety twenty-five percent (9025%) of the interests voting power and economic interest in Borrower and Operating Master Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity where such ownership represents a greater amount of the ultimate indirect owners of each of Borrower and Operating voting power or economic interest in Master Lessee than that which is identical and the percentage interests then owned by such ultimate indirect owners the Principal Control Persons and Principal Investors in each aggregate, or (B) shall have obtained the power (whether or not exercised) to elect a majority of Borrower and Operating Lessee is identical; andthe members of the board of directors (or similar governing body) of Master Lessee;
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(viii) Transfers of direct or indirect interests in Guarantor the Guarantors (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, any combination of one or more Guarantors or a Delaware limited liability companyGuarantor with Sponsor), and KBS REIT); provided KBS REIT continues to ownthe pledge or grant of security interests, directly or indirectly, one hundred percent (100%) as permitted under the terms of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) (in the aggregate) organizational documents for each of the direct or indirect interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesGuarantors; and
(viiv) KBS Operating Partnershipthe pledge, Operating LLChypothecation, KBS REIT encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee to an Approved Bank as security for the Revolving/Term Credit Facility (collectively, the “KBS Upper-Tier EntitiesRevolving/Term Credit Facility Lien”), and any other Person owning interests provided that the Revolving/Term Credit Facility Lien shall not be foreclosed upon unless (A) the ownership of such direct interest in the KBS Upper-Tier Entities, direct or indirect, Master Lessee following such foreclosure shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries held by an Approved Bank or a Qualified Transferee and to obtain loans fromcomply with all Gaming Laws and (B) such foreclosure shall not create or cause a Default or Event of Default hereunder (provided that the occurrence of such foreclosure, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under clause (A) is complied with, shall not of itself constitute a Secondary Loan resulting Default or Event of Default). For purposes solely of this Section 8.5(b)(iv), the term “Qualified Transferee” shall have the meaning set forth in a foreclosure Section 1.1 except that the “$2 Billion” figure in clause (b) of the pledged interests definition in Section 1.1 is replaced with “$1 Billion.” Notwithstanding the foregoing, Mezzanine Borrower shall be not, and shall not permit or suffer any person to, pledge, hypothecate, encumber or grant a Default under the Loan Documentssecurity interest in or lien on any direct or, except as set forth in this Section 8.5, indirect interest in Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or any SPE Entities, any Guarantor or Sponsor.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Permitted Equity Transfers. Notwithstanding the foregoing, none (a) A Transfer (but not a pledge or encumbrance) of the following Transfers (each an indirect beneficial interest in Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer:
Rating Agency Confirmation if (i) a Transfer by a natural person who is a memberMezzanine Lender receives thirty (30) days prior written notice thereof, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust;
(ii) a Transfer by devise or descent or by operation immediately prior to such Transfer, no Event of law upon the death of a memberDefault shall have occurred and be continuing, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less no more than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower, Mezzanine Borrower, any Senior Mezzanine Borrower, any Junior Mezzanine Borrower, HoldCo, or any SPE Entity is being Transferred (in the aggregateaggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, (v) HoldCo continues to own 100% of the ownership interests in Mezzanine Borrower and Mezzanine Borrower continues to own 100% of the ownership interests in Borrower, (vi) Guarantor retains Control of Mortgage Borrower, Master Lessee, HoldCo, Mezzanine Borrower, and each Junior Mezzanine Borrower, and Mortgage Borrower and continues to own, directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Master Lessee, (vii) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease, and (viii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect ownership interests in Master Lessee or Guarantor is being Transferred (in the aggregate of all such Transfers).
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Mezzanine Lender:
(i) a Transfer of interests in any Sponsor,
(ii) a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee and provided Borrower complies with Section 8.5(a) and (b) (and thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) a Transfer (but not a pledge or encumbrance in the case of any Transfer of interests in HoldCo) of any interests in Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) ▇▇▇▇ Capital Partners, LLC;
(2) Kohlberg Kravis ▇▇▇▇▇▇▇ & Co.;
(3) Vornado Realty, L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies,
(7) a transferee described in clause (iv) or (v) below; and
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to or transferee of all or substantially all of the assets of any of the foregoing, (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty one percent (51%) of such transferee is owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance;
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty-one percent (51%) percent of the direct or indirect interests in Guarantor to HoldCo being owned by a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesSponsor; and
(vivii) KBS Operating Partnershipa Transfer of direct or indirect interests in any Person that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (e.g., Operating LLCVornado Realty Trust).
(c) Notwithstanding the foregoing, KBS REIT (collectively, the “KBS Upper-Tier Entities”)Mezzanine Borrower shall not, and shall not permit or suffer any other Person owning interests person to, pledge, hypothecate, encumber or grant a security interest in the KBS Upper-Tier Entitiesor lien on any direct or, direct or except as set forth in this Section 8.5, indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans frominterest in Mortgage Borrower, or incur indebtedness toSenior Mezzanine Borrower, Mezzanine Borrower, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct Junior Mezzanine Borrower or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan DocumentsSPE Entities.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Permitted Equity Transfers. Notwithstanding the foregoing, none (a) A Transfer (but not a pledge or encumbrance) of the following Transfers (each an indirect beneficial interest in Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer:
Rating Agency Confirmation if (i) a Transfer by a natural person who is a memberMezzanine Lender receives thirty (30) days prior written notice thereof, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust;
(ii) a Transfer by devise or descent or by operation immediately prior to such Transfer, no Event of law upon the death of a memberDefault shall have occurred and be continuing, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less no more than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower, HoldCo, or any SPE Entity is being Transferred (in the aggregateaggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, (v) HoldCo continues to own 100% of the ownership interests in Mezzanine Borrower and Mezzanine Borrower continues to own 100% of the ownership interests in Borrower, (vi) Guarantor retains Control of Mortgage Borrower, Master Lessee, HoldCo, Mezzanine Borrower, and each Junior Mezzanine Borrower, and Mortgage Borrower and continues to own, directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Master Lessee, (vii) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease, and (viii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect ownership interests in Master Lessee or Guarantor is being Transferred (in the aggregate of all such Transfers).
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Mezzanine Lender:
(i) a Transfer of interests in any Sponsor,
(ii) a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee and provided Borrower complies with Section 8.5(a) and (b) (and thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) a Transfer (but not a pledge or encumbrance in the case of any Transfer of interests in HoldCo) of any interests in Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) ▇▇▇▇ Capital Partners, LLC;
(2) Kohlberg Kravis ▇▇▇▇▇▇▇ & Co.;
(3) Vornado Realty, L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee;
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies;
(7) a transferee described in clause (iv) or (v) below; and
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to or transferee of all or substantially all of the assets of any of the foregoing (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty-one percent (51%) of such transferee is owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance;
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty-one percent (51%) percent of the direct or indirect interests in Guarantor to HoldCo being owned by a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesSponsor; and
(vivii) KBS Operating Partnershipa Transfer of direct or indirect interests in any Person that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (eg, Operating LLCVornado Realty Trust).
(c) Notwithstanding the foregoing, KBS REIT (collectively, the “KBS Upper-Tier Entities”)Mezzanine Borrower shall not, and shall not permit or suffer any other Person owning interests person to, pledge, hypothecate, encumber or grant a security interest in the KBS Upper-Tier Entitiesor lien on any direct or, direct or except as set forth in this Section 8.5, indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans frominterest in Mortgage Borrower, or incur indebtedness toMezzanine Borrower, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct Junior Mezzanine Borrower or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan DocumentsSPE Entities.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Permitted Equity Transfers. (a) A Transfer of a direct or indirect ownership interest in Borrower and the SPE Entities that is otherwise prohibited hereunder shall nevertheless be permitted without Lender’s prior written consent or a Rating Agency Confirmation if (i) Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) no more than forty-nine percent (49%) of the direct or indirect ownership interests in Borrower or Mezzanine Borrower, or any other SPE Entity is being Transferred (in the aggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, and (v) the Principal Control Persons collectively retain Control of Borrower and the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Borrower and the SPE Entities.
(b) Notwithstanding anything herein to the foregoingcontrary, none of the following Transfers shall not require the prior written consent of or, except as otherwise required in clause (each y) below, notice to Lender or a “Permitted Transfer”Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Lender shall be deemed to be a Prohibited Equity Transferreceive prior written notice:
(i) a Transfer by a natural person who is a memberof (A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee (B) any interests in the parent entities of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustowners;
(ii) a Transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of equity interests in Borrower Member and Operating any Guarantor, Sponsor or Master Lessee Member between the members in conjunction with or after an initial public offering of Borrower Member and Operating Lessee Member; shares, provided that following any from and after the consummation of such Transfer(s)initial public offering, no Person or group other than the Principal Control Persons and Principal Investors (iA) Guarantor continues to ownshall have acquired beneficial ownership, directly or indirectly, not less of equity interests in Master Lessee representing more than ninety twenty-five percent (9025%) of the interests voting power and economic interest in Borrower and Operating Master Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity where such ownership represents a greater amount of the ultimate indirect owners of each of Borrower and Operating voting power or economic interest in Master Lessee than that which is identical and the percentage interests then owned by such ultimate indirect owners the Principal Control Persons and Principal Investors in each aggregate, or (B) shall have obtained the power (whether or not exercised) to elect a majority of Borrower and Operating Lessee is identical; andthe members of the board of directors (or similar governing body) of Master Lessee;
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(viii) Transfers of direct or indirect interests in Guarantor the Guarantors (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, any combination of one or more Guarantors or a Delaware limited liability companyGuarantor with Sponsor), and KBS REIT); provided KBS REIT continues to ownthe pledge or grant of security interests, directly or indirectly, one hundred percent (100%) as permitted under the terms of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) (in the aggregate) organizational documents for each of the direct or indirect interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesGuarantors; and
(viiv) KBS Operating Partnershipthe pledge, Operating LLChypothecation, KBS REIT (collectively, encumbrance or granting of a security interest in or lien on the “KBS Upper-Tier Entities”), and any other Person owning interests direct interest in the KBS Upper-Tier Entities, direct or indirect, shall be permitted Master Lessee to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans from, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, an Approved Bank as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan Documents.the
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding the foregoing, none (a) A Transfer (but not a pledge or encumbrance) of the following Transfers (each an indirect beneficial interest in Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Lender’s prior written consent or a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer:
Rating Agency Confirmation if (i) a Transfer by a natural person who is a memberLender receives thirty (30) days prior written notice thereof, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust;
(ii) a Transfer by devise or descent or by operation immediately prior to such Transfer, no Event of law upon the death of a memberDefault shall have occurred and be continuing, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less no more than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) of the direct or indirect ownership interests in Borrower or Mezzanine Borrower, HoldCo or any SPE Entity is being Transferred (in the aggregateaggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee (v) HoldCo continues to own 100% of the ownership interests in Mezzanine Borrower and Mezzanine Borrower continues to own 100% of the ownership interests in Borrower, (vi) Guarantor retains Control of Master Lessee, HoldCo, Mezzanine Borrower and Borrower and continues to own, directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Master Lessee, (vi) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease and (vii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect ownership interests in Master Lessee or Guarantor is being Transferred (in the aggregate of all such Transfers).
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Lender or a Rating Agency Confirmation:
(i) a Transfer of interests in any Sponsor,
(ii) a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee, provided Borrower complies with Section 8.7 (and thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) a Transfer (but not a pledge or encumbrance in the case of any Transfer of interests in HoldCo) of any interests in Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) ▇▇▇▇ Capital Partners, LLC;
(2) Kohlberg Kravis ▇▇▇▇▇▇▇ & Co.;
(3) Vornado Realty L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee;
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies;
(7) a transferee described in clause (iv) or (v) below;
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to, or transferee of all or substantially all of the assets of, any of the foregoing (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty-one percent (51%) percent of such transferee is owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance.
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty-one percent (51%) percent of the direct or indirect interests in Guarantor to HoldCo being owned by a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesSponsor; and
(vivii) KBS Operating Partnershipa Transfer of direct or indirect interests in any Person that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (eg, Operating LLCVornado Realty Trust). Notwithstanding the foregoing, KBS REIT (collectively, the “KBS Upper-Tier Entities”)Borrower shall not, and shall not permit or suffer any other Person owning interests person to, pledge, hypothecate, encumber or grant a security interest in the KBS Upper-Tier Entitiesor lien on any direct or, direct or except as set forth in this Section 8.5 indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans frominterest in Borrower, Mezzanine Borrower or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan DocumentsSPE Entities.
Appears in 1 contract
Permitted Equity Transfers. Notwithstanding (a) A Transfer of an ownership interest in Mezzanine Borrower or any Junior Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a Rating Agency Confirmation if all of the foregoingfollowing conditions are satisfied with respect to such Transfer: (i) Mezzanine Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) none of the direct ownership interests in Mortgage Borrower is being Transferred, (iv) no more than forty-nine percent (49%) of the ownership interests in Mezzanine Borrower or any Junior Mezzanine Borrower is being Transferred (in the aggregate of all such Transfers), (v) the transferee is not a Disqualified Transferee, (vi) the Principal Control Persons collectively retain Control of Mortgage Borrower, Mezzanine Borrower and any Junior Mezzanine Borrower, and (vii) the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Mortgage Borrower, Mezzanine Borrower and any Junior Mezzanine Borrower.
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of or, except as otherwise required in clause (each y) below, notice to Mezzanine Lender or a “Permitted Transfer”Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the ▇▇▇▇▇▇▇▇ Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Mezzanine Lender shall be deemed to be a Prohibited Equity Transferreceive prior written notice:
(i) a Transfer by a natural person who is a memberof (A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee (B) any interests in the parent entities of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trustowners;
(ii) a Transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of equity interests in Borrower Member and Operating any Guarantor, Sponsor or Master Lessee Member between the members in conjunction with or after an initial public offering of Borrower Member and Operating Lessee Member; shares, provided that following any from and after the consummation of such Transfer(s)initial public offering, no Person or group other than the Principal Control Persons and Principal Investors (iA) Guarantor continues to ownshall have acquired beneficial ownership, directly or indirectly, not less of equity interests in Master Lessee representing more than ninety twenty-five percent (9025%) of the interests voting power and economic interest in Borrower and Operating Master Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity where such ownership represents a greater amount of the ultimate indirect owners of each of Borrower and Operating voting power or economic interest in Master Lessee than that which is identical and the percentage interests then owned by such ultimate indirect owners the Principal Control Persons and Principal Investors in each aggregate, or (B) shall have obtained the power (whether or not exercised) to elect a majority of Borrower and Operating Lessee is identical; andthe members of the board of directors (or similar governing body) of Master Lessee;
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(viii) Transfers of direct or indirect interests in Guarantor the Guarantors (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, any combination of one or more Guarantors or a Delaware limited liability companyGuarantor with Sponsor), and KBS REIT); provided KBS REIT continues to ownthe pledge or grant of security interests, directly or indirectly, one hundred percent (100%) as permitted under the terms of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) (in the aggregate) organizational documents for each of the direct or indirect interests in Guarantor to a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesGuarantors; and
(viiv) KBS Operating Partnershipthe pledge, Operating LLChypothecation, KBS REIT encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee to an Approved Bank as security for the Revolving/Term Credit Facility (collectively, the “KBS Upper-Tier EntitiesRevolving/Term Credit Facility Lien”), and any other Person owning interests provided that the Revolving/Term Credit Facility Lien shall not be foreclosed upon unless (A) the ownership of such direct interest in the KBS Upper-Tier Entities, direct or indirect, Master Lessee following such foreclosure shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries held by an Approved Bank or a Qualified Transferee and to obtain loans fromcomply with all Gaming Laws and (B) such foreclosure shall not create or cause a Default or Event of Default hereunder (provided that the occurrence of such foreclosure, or incur indebtedness to, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under clause (A) is complied with, shall not of itself constitute a Secondary Loan resulting Default or Event of Default). For purposes solely of this Section 8.5(b)(iv), the term “Qualified Transferee” shall have the meaning set forth in a foreclosure Section 1.1 except that the “$2 Billion” figure in clause (b) of the pledged interests definition in Section 1.1 is replaced with “$1 Billion.” Notwithstanding the foregoing, Mezzanine Borrower shall be not, and shall not permit or suffer any person to, pledge, hypothecate, encumber or grant a Default under the Loan Documentssecurity interest in or lien on any direct or, except as set forth in this Section 8.5, indirect interest in Mortgage Borrower, Mezzanine Borrower, any Junior Mezzanine Borrower or any SPE Entities, any Guarantor or Sponsor.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Permitted Equity Transfers. Notwithstanding the foregoing, none (a) A Transfer (but not a pledge or encumbrance) of the following Transfers (each an indirect beneficial interest in Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Mezzanine Lender’s prior written consent or a “Permitted Transfer”) shall be deemed to be a Prohibited Equity Transfer:
Rating Agency Confirmation if (i) a Transfer by a natural person who is a memberMezzanine Lender receives thirty (30) days prior written notice thereof, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust;
(ii) a Transfer by devise or descent or by operation immediately prior to such Transfer, no Event of law upon the death of a memberDefault shall have occurred and be continuing, partner or shareholder of a Restricted Party where such Transfer does not result in a Default under this Agreement;
(iii) Transfers of interests in Borrower Member and Operating Lessee Member between the members of Borrower Member and Operating Lessee Member; provided that following any such Transfer(s), (i) Guarantor continues to own, directly or indirectly, not less no more than ninety percent (90%) of the interests in Borrower and Operating Lessee and to Control Borrower and Operating Lessee, in each case subject to the terms of (w) the Limited Liability Company Agreement of Borrower Member, (x) the Limited Liability Company Agreement of Operating Lessee Member, and (y) the Management Agreement, and (z) the Franchise Agreement, and (ii) the identity of the ultimate indirect owners of each of Borrower and Operating Lessee is identical and the percentage interests owned by such ultimate indirect owners in each of Borrower and Operating Lessee is identical; and
(iv) Transfers of direct or indirect interest in EH Q&C, LLC, a Delaware limited liability company (“Encore Member”), provided that following any such Transfer, Encore Enterprise, Inc. continues to Control Encore Member; and
(v) Transfers of direct or indirect interests in Guarantor (including, without limitation, KBS Operating Partnership, KBS Strategic Opportunity Holdings II, LLC, a Delaware limited liability company, and KBS REIT); provided KBS REIT continues to own, directly or indirectly, one hundred percent (100%) of the equity interests in Guarantor; provided, further, that Transfers of up to forty-nine percent (49%) of the direct or indirect ownership interests in Mortgage Borrower, Mezzanine Borrower, any Senior Mezzanine Borrower, HoldCo, or any SPE Entity is being Transferred (in the aggregateaggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, (v) HoldCo continues to own 100% of the ownership interests in Mezzanine Borrower and Mezzanine Borrower continues to own 100% of the ownership interest in Borrower, (vi) Guarantor retains Control of Mortgage Borrower, Master Lessee, HoldCo, Mezzanine Borrower, and each Senior Mezzanine Borrower, and Mortgage Borrower and continues to own, directly and/or indirectly, at least fifty-one percent (51%) of the equity interests in Master Lessee, (vii) Master Lessee (or its successor by merger or acquisition of all or substantially all of Master Lessee’s assets) remains the master lessee under the Master Lease, and (viii) except as otherwise permitted under clause (b) below, no more than forty-nine percent (49%) of the direct or indirect ownership interests in Master Lessee or Guarantor is being Transferred (in the aggregate of all such Transfers).
(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of Mezzanine Lender:
(i) a Transfer of interests in any Sponsor,
(ii) a Transfer of interests in Guarantor or Master Lessee as a result of a merger or a Transfer of all or substantially all of the assets of a direct or indirect owner of Guarantor or Master Lessee to a Permitted Transferee or Pre-Approved Transferee, and provided Borrower complies with Section 8.5(a) and (b) (and thereafter Transfers of interests in any such transferee if it is publicly traded);
(iii) a Transfer (but not a pledge or encumbrance in the case of any Transfer of interests in HoldCo) of any interests in Guarantor, Master Lessee or HoldCo, provided that subsequent to any such Transfer, more than fifty-one percent (51%) percent of HoldCo is owned by any one or more of the following:
(1) ▇▇▇▇ Capital Partners, LLC;
(2) Kohlberg Kravis ▇▇▇▇▇▇▇ & Co.;
(3) Vornado Realty, L.P.;
(4) a Permitted Transferee;
(5) a Pre-Approved Transferee
(6) any Person that has been previously approved in writing by Lender and the Rating Agencies,
(7) a transferee described in clause (iv) or (v) below; and
(8) an investment fund, limited liability company, limited partnership or general partnership with committed capital of at least $1,000,000,000 where a Permitted Fund Manager acts as the general partner, managing partner, managing member or fund manager and at least 51% of the equity interests in such Permitted Fund Manager are owned, directly or indirectly, by any of the Persons listed above; and
(9) any successor by merger with respect to or transferee of all or substantially all of the assets of any of the foregoing, (each of the foregoing Persons described in clauses (1) through (8), a “Sponsor”);
(iv) a pledge or encumbrance of interests in Guarantor or Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance, provided not less than fifty-one percent (51%) of such transferee is owned by a Sponsor;
(v) a pledge or encumbrance of interests in HoldCo as security for a loan secured by all or substantially all of the assets of Master Lessee and any Transfer of such interests in realization upon such pledge or encumbrance;
(vi) a pledge or encumbrance of direct or indirect interests in the Person (“HoldCo Parent”) that owns the direct interests in HoldCo as security for a loan secured by all or substantially all of the assets of the owner of the interests in HoldCo Parent (provided that such interests in HoldCo Parent do not constitute more than 25% of such owner’s net worth) and any Transfer of such interests in realization upon such pledge or encumbrance, provided such Transfer does not result in less than fifty-one percent (51%) percent of the direct or indirect interests in Guarantor to HoldCo being owned by a Person not owned directly or indirectly by KBS REIT (a “Non-Affiliate Transferee”) shall be permitted with Lender’s consent, which consent shall not be unreasonably withheld, provided that (i) not less than fifteen (15) Business Days prior to the date of the proposed Transfer, Borrower delivers a written request to Lender for Lender’s consent to such Transfer, which request shall specifically identify the proposed Non-Affiliate Transferee, together with such other information with respect to such Non-Affiliate Transferee as Lender may reasonably request (including, without limitation, organizational documents of such Non-Affiliate Transferee, financial statements of such Non-Affiliate Transferee and lien, bankruptcy, judgment and litigation searches with respect to such Non-Affiliate Transferee) and (ii) it shall be reasonable for Lender to withhold its consent to such Transfer if the Non-Affiliate Transferee is not a ▇▇▇▇▇ Fargo Customer in Good Standing; provided further that Guarantor shall be permitted to execute guaranties and/or indemnity agreements for its subsidiariesSponsor; and
(vivii) KBS Operating Partnershipa Transfer of direct or indirect interests in any Person that holds an indirect interest in HoldCo that is either (A) publicly traded or (B) an “umbrella partnership” in which a publicly traded REIT is the general partner (e.g., Operating LLCVornado Realty Trust).
(c) Notwithstanding the foregoing, KBS REIT (collectively, the “KBS Upper-Tier Entities”)Mezzanine Borrower shall not, and shall not permit or suffer any other Person owning interests person to, pledge, hypothecate, encumber or grant a security interest in the KBS Upper-Tier Entitiesor lien on any direct or, direct or except as set forth in this Section 8.5, indirect, shall be permitted to execute guaranties and/or indemnity agreements for their respective subsidiaries and to obtain loans frominterest in Mortgage Borrower, or incur indebtedness toMezzanine Borrower, any third-party lender (each a “Secondary Loan”) and to pledge their respective interests (direct Senior Mezzanine Borrower or indirect) in the KBS Upper-Tier Entities or Guarantor, as security for any such Secondary Loan so long as any default under a Secondary Loan resulting in a foreclosure of the pledged interests shall be a Default under the Loan DocumentsSPE Entities.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Toys R Us Inc)