Permitted Transfer. (i) If the Company does not elect to irrevocably commit to purchase all of the Offered Stock prior to the expiration of the Election Period as set forth in Section 1.4(b), then the Transferring Party may Transfer all, but not less than all, of the Offered Stock to any Person at a price no less than the Offering Price and on terms and conditions no more favorable to the transferee than those specified in the Offering Notice for a period of up to thirty-five (35) days from the expiration of the Election Period including, if such Class A Ordinary Shares are at such time Registrable Securities, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject to the provisions of this Section 1.4, and any Offered Stock not so Transferred within such period shall continue to be subject to the provisions of this Section 1.4 in connection with any subsequent proposed Transfer. (ii) If the Company elects to purchase all of the Offered Stock, then the closing of the purchase of such Offered Stock from such Transferring Party shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during the 10 day period immediately following the date on which the Election Notice was delivered to the Transferring Party or at such other time and place as the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase of such Offered Stock, (y) the Company shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at least two days prior to such closing.
Appears in 2 contracts
Sources: Master Commutation, Release and Restructuring Agreement (Security Capital Assurance LTD), Registration Rights Agreement (Xl Capital LTD)
Permitted Transfer. Notwithstanding the foregoing provisions of this Article IX, subsequent to the first (i1st) If the Company does not elect to irrevocably commit to purchase all anniversary of the Offered Stock prior to the expiration Closing Date, a one time sale, conveyance or transfer of the Election Period as set forth Cross-collateralized Properties in Section 1.4(b)their entirety (hereinafter, then the Transferring Party may Transfer all"Sale") shall be permitted hereunder, but not less than all, provided that each of the Offered Stock to any Person at a price no less than the Offering Price and on following terms and conditions are satisfied:
(a) no more favorable Default is then continuing hereunder or under any of the other Loan Documents;
(b) Lender shall have consented to the transferee than those specified in the Offering Notice for a period of up to thirty-five (35) days from the expiration of the Election Period includingSale, which consent shall not be unreasonably withheld or delayed, and, if the proposed Sale is to occur at any time after a Securitization, each Rating Agency shall have delivered written confirmation that any rating issued by such Class A Ordinary Shares are at such time Registrable Securities, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject to the provisions of this Section 1.4, and any Offered Stock not so Transferred within such period shall continue to be subject to the provisions of this Section 1.4 Rating Agency in connection with any subsequent proposed Transfer.
(ii) If the Company elects to purchase all Securitization will not, as a result of the Offered Stockproposed Sale, be downgraded from the then current ratings thereof, qualified or withdrawn; provided, however, that no request for consent to the closing Sale will be entertained by ▇▇▇▇▇▇ if the proposed Sale is to occur within sixty (60) days of any contemplated sale of the purchase of such Offered Stock from such Transferring Party shall be held at the offices of Cadwalader, Loan by ▇▇▇▇▇▇, whether in connection with a Securitization or otherwise;
(c) Borrower gives Lender written notice of the terms of the proposed Sale not less than sixty (60) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender (i) all such information concerning the proposed transferee of the Property (hereinafter, "Buyer") as Lender would require in evaluating an initial extension of credit to a borrower and Lender determines, in its sole discretion that the Buyer is acceptable to Lender in all respects and (ii) a non-refundable application fee equal to $7,500;
(d) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to one percent (1%) of the then outstanding Loan Amount together with all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale;
(e) Buyer assumes all of the obligations under the Loan Documents and, prior to or concurrently with the closing of such Sale, Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may reasonably require;
(f) Borrower and Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by ▇▇▇▇▇▇;
(g) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all in form and substance reasonably satisfactory to Lender, including, without limitation, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument, extending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the assumption agreement referenced above in subparagraph (e) of this Section, with no additional exceptions added to such policy, and insuring that fee simple title to the Property is vested in Buyer;
(h) Borrower executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the Loan Documents, through and including the date of the closing of the Sale, which agreement shall be in form and substance reasonably satisfactory to Lender and shall be binding upon Buyer;
(i) subject to the provisions of Section 18.32 hereof, such Sale is not construed so as to relieve Borrower of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and Borrower executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability;
(j) such Sale is not construed so as to relieve any Guarantor of its obligations under any guaranty or indemnity agreement executed in connection with the Loan and each such Guarantor executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of each such guaranty agreement, provided that if Buyer or a party associated with Buyer approved by Lender in its sole discretion assumes the obligations of the current Guarantor under its guaranty and Buyer or such party associated with Buyer, as applicable, executes, without any cost or expense to Lender, a new guaranty in similar form and substance to the existing guaranty and otherwise satisfactory to Lender, then Lender shall release the current Guarantor from all obligations arising under its guaranty after the closing of such Sale; and
(k) Buyer is a Single Purpose Entity and ▇▇▇▇▇▇ & receives a non-consolidation opinion relating to ▇▇▇▇▇ LLPfrom Buyer's counsel, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during the 10 day period immediately following the date on which the Election Notice was delivered opinion is in form and substance acceptable to the Transferring Party or at such other time and place as the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase of such Offered Stock, (y) the Company shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at least two days prior to such closingLender.
Appears in 1 contract
Permitted Transfer. Notwithstanding anything herein or in the other Loan Documents to the contrary, the Banks shall not withhold their consent to a transfer (ithe "Permitted Transfer") If by the Guarantor of its interest in the Managing Member, Co-Managing Member, Holding Company does not elect to irrevocably commit to purchase and Holding Company Managing Member provided that each of the following conditions is satisfied: (a) no Default or Event of Default shall have occurred, nor shall such transfer cause a Default or Event of Default; (b) such transfer shall be a transfer by the Guarantor of all of the Offered Stock prior to the expiration its interest in each of the Election Period as set forth in Section 1.4(b), then the Transferring Party may Transfer all, but not less than all, of the Offered Stock to any Person at a price no less than the Offering Price and on terms and conditions no more favorable to the transferee than those specified in the Offering Notice for a period of up to thirty-five (35) days from the expiration of the Election Period including, if such Class A Ordinary Shares are at such time Registrable Securities, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject to the provisions of this Section 1.4foregoing entities, and any Offered Stock not so Transferred within such period shall continue to be subject to the provisions of this Section 1.4 in connection with any subsequent proposed Transfer.
(ii) If the Company elects to purchase all of the Offered Stock, then the closing of the purchase of such Offered Stock from such Transferring Party transfer shall be held at the offices of Cadwalader, ▇▇▇to a single trust controlled by ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, One World Financial Center, New York, New Yorkin the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇ is alive and not otherwise incapacitated, or at such other location as shall be mutually agreedin the event of the death or mental incapacity of ▇▇▇▇▇▇▇ ▇▇▇▇▇, at then to a mutually agreed upon time on a mutually agreed upon Business Day during trust controlled by ▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇ (provided that in the 10 day period immediately following event that the date on which the Election Notice was delivered Guarantor for compelling tax or liability reasons relating to the Transferring Party current ownership structure of such interests desires to transfer such interests to another entity, the Agent shall not unreasonably withhold its consent to a transfer to another form of entity provided that the same shall not cause a default or at event of default under the Mortgage Loan Documents or a Default or Event of Default, and the Borrower shall cause such other time and place Persons as Agent may require to execute such amendments to the Loan Documents or provide such additional pledges or assignments as the parties Agent may require in order to provide the Agent with the same rights, pledges and security afforded under the Loan Documents); (c) such transferee shall execute and deliver an assumption agreement in form and substance satisfactory to the transaction may agree. At Agent assuming the obligations of the Guarantor under the Loan Documents; (d) Guarantor shall deliver to the Agent evidence satisfactory to the Agent that such closingtransfer shall not, or will not with the giving of notice or the passage of time, constitute a default under the Mortgage Loan Documents or result in the withdrawal, qualification or downgrading of the current ratings assigned to any certificates relating to the Mortgage Loan (xin the event that the same has been securitized), to the extent the same is a condition to such transfer pursuant to the Mortgage Loan Documents; and (e) the Transferring Party will deliver stock certificates evidencing Agent receives and approves (such approval not to be unreasonably withheld) certified copies of the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) organizational documents and authorizing resolutions for such transferee and such other instruments opinions of counsel to such transferee as the Company may be reasonably require to consummate the purchase of such Offered Stock, (y) the Company shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated required by the Transferring Party in writing to the Company at least two days prior to Agent. From and after any such closingPermitted Transfer, such transferee shall constitute an "Additional Pledgor" under this Agreement.
Appears in 1 contract
Permitted Transfer. Notwithstanding the foregoing provisions of this Article IX, a one time sale (and in the case of an IPO, a transaction or series of related transactions occurring on or about the same day in connection with the IPO), conveyance or Transfer of the Property in its entirety (hereinafter, “Sale”) shall be permitted hereunder provided that each of the following terms and conditions are satisfied:
(a) no Event of Default is then continuing hereunder or under any of the other Loan Documents;
(b) If the proposed Sale is to occur at any time after a Securitization, each Rating Agency shall have delivered written confirmation that any rating issued by such Rating Agency in connection with the Securitization will not, as a result of the proposed Sale, be downgraded from the then current ratings thereof, qualified or withdrawn; provided, however, no such confirmation shall be required to be obtained from the Rating Agencies in the event the IPO results in the outstanding principal amount of the Loan and the Mezz Loan, collectively, being reduced by $150,000,000 or more and, provided, further, that, prior to January 1, 2006, no Sale (other than in connection with an IPO) will be permitted if the Sale is to occur within sixty (60) days of any contemplated sale of the Loan by Lender, whether in connection with a Securitization or otherwise;
(c) Borrower gives Lender written notice of the terms of the proposed Sale not less than sixty (60) days or with respect to an IPO, fifteen (15) days, before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender (i) If all such information concerning the Company does not elect proposed transferee of the Property (hereinafter, “Buyer”) as Lender would require in evaluating an initial extension of credit to irrevocably commit a borrower and Lender determines, in its sole discretion that the Buyer is acceptable to purchase Lender in all respects (other than in connection with an IPO) and (ii) a non-refundable application fee equal to $15,000;
(d) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to one percent (1%) of the then outstanding Loan Amount together with all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by Lender in connection with the Sale; provided, however, that no such assumption fee shall be required in connection with a Transfer effected in connection with an IPO (but Borrower shall be required to pay all out-of-pocket costs and expenses of Lender);
(e) In the event the applicable Transfer will result in Borrower no longer owning the Property, Buyer assumes all of the Offered Stock obligations under the Loan Documents and, prior to or concurrently with the expiration closing of such Sale, Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may require;
(f) In the event the applicable Transfer will result in Borrower no longer owning the Property, Borrower and Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(g) In the event the applicable Transfer will result in Borrower no longer owning the Property, Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender’s title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Election Period as set forth Sale, all in Section 1.4(b)form and substance reasonably satisfactory to Lender, then including, without limitation, an endorsement or endorsements to Lender’s title insurance policy insuring the Transferring Party may Transfer alllien of this Security Instrument, but not less than allextending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the Offered Stock assumption agreement referenced above in subparagraph (e) of this Section, with no additional exceptions added to any Person at a price no less than the Offering Price such policy, and on terms and conditions no more favorable insuring that fee simple title to the transferee than those specified Property is vested in Buyer;
(h) In the Offering Notice for event the applicable Transfer will result in Borrower no longer owning the Property, Borrower executes and delivers to Lender, without any cost or expense to Lender, a period release of up Lender, its officers, directors, employees and agents, from all claims and liability relating to thirty-five (35) days from the expiration transactions evidenced by the Loan Documents, through and including the date of the Election Period includingclosing of the Sale, if such Class A Ordinary Shares are at such time Registrable Securitieswhich agreement shall be in form and substance satisfactory to Lender and shall be binding upon Buyer;
(i) In the event the applicable Transfer will result in Borrower no longer owning the Property, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject to the provisions of this Section 1.418.32 hereof, such Sale does not relieve Borrower of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and Borrower executes, without any Offered Stock cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability;
(j) In the event the applicable Transfer will result in Borrower no longer owning the Property, such Sale does not so Transferred within such period shall continue to be subject to the provisions relieve any Guarantor of this Section 1.4 its obligations under any guaranty or indemnity agreement executed in connection with the Loan and each such Guarantor executes, without any subsequent proposed Transfer.
(ii) If cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the Company elects to purchase all ratification of each such guaranty agreement, provided that if Buyer or a party associated with Buyer approved by Lender in its sole discretion assumes the obligations of the Offered Stockcurrent Guarantor under its guaranty and Buyer or such party associated with Buyer, as applicable, executes, without any cost or expense to Lender, a new guaranty in similar form and substance to the existing guaranty and otherwise satisfactory to Lender, then Lender shall release the current Guarantor from all obligations arising under its guaranty after the closing of such Sale; and
(k) In the purchase of such Offered Stock event the applicable Transfer will result in Borrower no longer owning the Property, Buyer is a Single Purpose Entity and Lender receives a non-consolidation opinion relating to Buyer from such Transferring Party shall be held at the offices of CadwaladerBuyer’s counsel, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during the 10 day period immediately following the date on which the Election Notice was delivered opinion is in form and substance acceptable to the Transferring Party or at such other time and place as the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase of such Offered Stock, (y) the Company shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at least two days prior to such closingLender.
Appears in 1 contract
Permitted Transfer. Notwithstanding the foregoing provisions of this Article IX, subsequent to the first (i1st) If the Company does not elect to irrevocably commit to purchase all anniversary of the Offered Stock prior to the expiration Closing Date, a one time sale, conveyance or transfer of the Election Period as set forth Cross-collateralized Properties in Section 1.4(b)their entirety (hereinafter, then the Transferring Party may Transfer all"Sale") shall be permitted hereunder, but not less than all, provided that each of the Offered Stock to any Person at a price no less than the Offering Price and on following terms and conditions are satisfied:
(a) no more favorable Default is then continuing hereunder or under any of the other Loan Documents;
(b) Lender shall have consented to the transferee than those specified in the Offering Notice for a period of up to thirty-five (35) days from the expiration of the Election Period includingSale, which consent shall not be unreasonably withheld or delayed, and, if the proposed Sale is to occur at any time after a Securitization, each Rating Agency shall have delivered written confirmation that any rating issued by such Class A Ordinary Shares are at such time Registrable Securities, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject to the provisions of this Section 1.4, and any Offered Stock not so Transferred within such period shall continue to be subject to the provisions of this Section 1.4 Rating Agency in connection with any subsequent proposed Transfer.
(ii) If the Company elects to purchase all Securitization will not, as a result of the Offered Stockproposed Sale, be downgraded from the then current ratings thereof, qualified or withdrawn; provided, however, that no request for consent to the closing Sale will be entertained by ▇▇▇▇▇▇ if the proposed Sale is to occur within sixty (60) days of any contemplated sale of the purchase of such Offered Stock from such Transferring Party shall be held at the offices of Cadwalader, Loan by ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New York, whether in connection with a Securitization or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during otherwise;
(c) Borrower gives Lender written notice of the 10 day period immediately following terms of the proposed Sale not less than sixty (60) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender (i) all such information concerning the Election Notice was delivered proposed transferee of the Property (hereinafter, "Buyer") as Lender would require in evaluating an initial extension of credit to a borrower and Lender determines, in its sole discretion that the Transferring Party or at such other time Buyer is acceptable to Lender in all respects and place as (ii) a non-refundable application fee equal to $7,500;
(d) Borrower pays Lender, concurrently with the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase closing of such Offered StockSale, (y) the Company shall deliver a non-refundable assumption fee in an amount equal to the product of one percent (1%) of the Offered Stock then outstanding Loan Amount together with all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale;
(2e) Buyer assumes all of the Offering Priceobligations under the Loan Documents and, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at least two days prior to or concurrently with the closing of such closing.Sale, Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may reasonably require;
Appears in 1 contract
Permitted Transfer. Notwithstanding the foregoing provisions of this Article IX, subsequent to the first (1st) anniversary of the Closing Date and prior to the date which is six (6) months prior to the Stated Maturity, a two time sale, conveyance or transfer of the Property in its entirety (hereinafter, “Sale”) shall be permitted hereunder provided that each of the following terms and conditions are satisfied:
(a) no Default is then continuing hereunder or under any of the other Loan Documents;
(b) If the proposed Sale is to occur at any time after a Securitization, each Rating Agency shall have delivered written confirmation that any rating issued by such Rating Agency in connection with the Securitization will not, as a result of the proposed Sale, be downgraded from the then current ratings thereof, qualified or withdrawn; provided, however, that no request for consent to the Sale will be entertained by Lender if the proposed Sale is to occur within sixty (60) days of any contemplated sale of the Loan by Lender, whether in connection with a Securitization or otherwise;
(c) Grantor gives Lender written notice of the terms of the proposed Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender (i) If all such information concerning the Company does not elect proposed transferee of the Property (hereinafter, “Buyer”) as Lender would require in evaluating an initial extension of credit to irrevocably commit a borrower and Lender determines, in its reasonable discretion that the Buyer is acceptable to purchase Lender in all respects, it being acknowledge that, with respect to a Sale of the Cross-collateralized Properties, a Qualified Transferee shall be acceptable to Lender and, with respect to a Sale of less than all of the Offered Stock Cross-collateralized Properties, a Person which meets Lender’s then current underwriting requirements for similar loans shall be acceptable to Lender, and (ii) a non-refundable application fee equal to $15,000;
(d) Grantor pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to fourth-tenths of one percent (.40%) of the then outstanding Allocated Loan Amount for each Cross-collateralized Property which is included in the Sale together with all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by Lender in connection with the Sale;
(e) Buyer assumes all of the obligations under the Loan Documents relating to the Property and, prior to or concurrently with the expiration closing of such Sale, Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may require;
(f) Grantor and Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(g) Grantor delivers to Lender, without any cost or expense to Lender, such endorsements to Lender’s title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Election Period as set forth Sale, all in Section 1.4(b)form and substance satisfactory to Lender, then including, without limitation, an endorsement or endorsements to Lender’s title insurance policy insuring the Transferring Party may Transfer alllien of this Security Instrument, but not less than allextending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the Offered Stock assumption agreement referenced above in subparagraph (e) of this Section, with no additional exceptions added to any Person at a price no less than the Offering Price such policy, and on terms and conditions no more favorable insuring that fee simple title to the transferee than those specified Property is vested in Buyer;
(h) Grantor executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the Offering Notice for a period of up to thirty-five (35) days from transactions evidenced by the expiration Loan Documents, through and including the date of the Election Period includingclosing of the Sale, if such Class A Ordinary Shares are at such time Registrable Securities, pursuant which agreement shall be in form and substance satisfactory to Article II. The Offered Stock so Transferred to any Person within such period Lender and shall cease to be binding upon Buyer;
(i) subject to the provisions of this Section 1.418.32 hereof, such Sale is not construed so as to relieve Grantor of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and Grantor executes, without any Offered Stock cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability;
(j) such Sale is not construed so Transferred within such period shall continue as to be subject to the provisions relieve any Guarantor of this Section 1.4 its obligations under any guaranty or indemnity agreement executed in connection with the Loan and each such Guarantor executes, without any subsequent proposed Transfer.
(ii) If cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the Company elects to purchase all ratification of each such guaranty agreement, provided that if Buyer or a party associated with Buyer approved by Lender in its reasonable discretion assumes the obligations of the Offered Stockcurrent Guarantor under its guaranty and Buyer or such party associated with Buyer, as applicable, executes, without any cost or expense to Lender, a new guaranty in similar form and substance to the existing guaranty and otherwise satisfactory to Lender, then Lender shall release the current Guarantor from all obligations arising under its guaranty after the closing of the purchase of such Offered Stock Sale;
(k) Buyer is a Single Purpose Entity and Lender receives a non-consolidation opinion relating to Buyer from such Transferring Party shall be held at the offices of CadwaladerBuyer’s counsel, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during the 10 day period immediately following the date on which the Election Notice was delivered opinion is in form and substance acceptable to the Transferring Party or at such other time and place as the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase of such Offered Stock, (y) the Company shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at least two days prior to such closing.Lender; and
Appears in 1 contract
Sources: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (RLJ Lodging Trust)
Permitted Transfer. (i) If Notwithstanding the Company does not elect to irrevocably commit to purchase all foregoing provisions of this Article IX, a sale, conveyance or transfer of the Offered Stock Property in its entirety (whether directly or indirectly) (hereinafter, “Sale”) shall be permitted hereunder provided that each of the following terms and conditions are satisfied:
(a) no Default is then continuing hereunder or under any of the other Loan Documents;
(b) Lender shall have, in its reasonable discretion, consented to the Sale, and, if the proposed Sale is to occur at any time after a Securitization, each Rating Agency shall have delivered written confirmation that any rating issued by such Rating Agency in connection with the Securitization will not, as a result of the proposed Sale, be downgraded from the then current ratings thereof, qualified or withdrawn; provided, however, that no request for consent to the Sale will be entertained by Lender if the proposed Sale is to occur within sixty (60) days prior to the expiration any contemplated sale of the Election Period as set forth Loan by Lender in Section 1.4(b), then connection with a Securitization;
(c) Borrower gives Lender written notice of the Transferring Party may Transfer all, but terms of the proposed Sale not less than all, of the Offered Stock to any Person at a price no less than the Offering Price and on terms and conditions no more favorable to the transferee than those specified in the Offering Notice for a period of up to thirty-five thirty (3530) days from the expiration of the Election Period including, if such Class A Ordinary Shares are at such time Registrable Securities, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject to the provisions of this Section 1.4, and any Offered Stock not so Transferred within such period shall continue to be subject to the provisions of this Section 1.4 in connection with any subsequent proposed Transfer.
(ii) If the Company elects to purchase all of the Offered Stock, then the closing of the purchase of such Offered Stock from such Transferring Party shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during the 10 day period immediately following before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender (i) all such information concerning the Election Notice was delivered proposed transferee of the Property (hereinafter, “Buyer”) as Lender would require in evaluating an initial extension of credit to a borrower and (ii) a non-refundable application fee equal to $7,500;
(d) Borrower pays Lender, concurrently with the Transferring Party or at such other time and place as the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase closing of such Offered StockSale, (y) the Company shall deliver a non-refundable assumption fee in an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing $350,000 with respect to the Company at least two days first Sale or one-half of one percent (0.5%) of the then outstanding principal balance of the Loan for each subsequent Sale, in each case, together with all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by Lender in connection with the Sale;
(e) Buyer assumes all of the obligations of Borrower under the Loan Documents and, prior to or concurrently with the closing of such closing.Sale, Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may reasonably require;
(f) Buyer executes, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(g) Borrower or Buyer delivers to Lender, without any cost or expense to Lender, an endorsement or endorsements to Lender’s title insurance policy insuring the lien of this Security Instrument, extending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the assumption agreement referenced above in subparagraph (e) of this Section, with no additional exceptions added to such policy (unless otherwise agreed to by Lender), or a new title policy with no exceptions other than Permitted Encumbrances and otherwise in form and substance reasonably acceptable to Lender, insuring that fee simple title to the Property is vested in Buyer;
Appears in 1 contract
Sources: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Behringer Harvard Reit I Inc)
Permitted Transfer. Any Partner not in default under Article X (“Selling Partner”) may Transfer all of its interest in the Partnership (“Interest to be Sold”) to any person or entity (“Proposed Buyer”) upon the following terms:
(a) The Selling Partner shall deliver to the other Partners, within five days of the execution thereof, an executed copy of a bona fide arms-length written contract with the Proposed Buyer. No contract shall be considered “bona fide” unless, at a minimum, it (i) If the Company does not elect to irrevocably commit to purchase all provides for at least fifty percent (50%) of the Offered Stock prior purchase price to be paid in cash upon closing; (ii) is not assignable by the expiration Proposed Buyer (other than to a wholly-owned subsidiary), (iii) provides for a closing no earlier than the later of the Election Period thirtieth (30th) day following the date of such written contract and the date on which the other parties decline to exercise their option under this Section 9.2 or more than one hundred twenty (120) days after the date of the contract, (iv) governs only the sale of the Interest to be Sold, which sale shall be a discrete transaction and not part of any other transaction (provided, however, such a sale may provide for the continued management services of Bally Operator or its Affiliate on the same terms as set forth in Section 1.4(bprovided herein), then the Transferring Party may Transfer all, but not less than all, of the Offered Stock to any Person at a price no less than the Offering Price and on terms and conditions no more favorable to the transferee than those specified in the Offering Notice for a period of up to thirty-five (35v) days from the expiration of the Election Period including, if such Class A Ordinary Shares are at such time Registrable Securities, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be is expressly made subject to the rights of the other Partners under this Section 9.2, (vi) is accompanied by a statement, in reasonable detail, of personal and financial information relating to the Proposed Buyer, including the information as is required of the parties under Section 10.3.
(i) Upon receipt of a contract conforming to the requirements of Section 9.2(a), the other Partners shall either (x) subject to Section 9.2(c), allow the Selling Partner to sell the Interest to be Sold to the Proposed Buyer in accordance with the terms and provisions of this Section 1.4the contract, and any Offered Stock not so Transferred within such period shall continue or (y) agree to purchase the Interest to be subject to Sold in accordance with the terms and provisions of this Section 1.4 the contract at the price contained in connection with any subsequent proposed Transferthe contract.
(ii) The other Partners shall have a period of forty-five (45) days after the Selling Partner’s notice under Section 9.2(a) to serve upon the Selling Partner a notice which shall specify whether or not such Partners will purchase the Interest to be Sold. If any Partner fails to respond within such time or fails to agree within such time to purchase the entire Interest to be Sold, it shall be deemed, subject to Section 9.2(c), to have elected and agreed to the sale of the Interest to be Sold to the Proposed Buyer and shall, if necessary, execute, acknowledge and deliver such documents, or cause the same to be done, as shall be required to effectuate the sale of such Interest to be Sold in accordance with such contract.
(iii) If the Company elects other Partners elect to purchase all undertake the Subject Transaction, they may elect to substitute cash for non-cash consideration or their own promissory notes for those of the Offered StockProposed Buyer, then in which case they must state as such in their notice provided under Section 9.2(b)(ii) and accompany such notice with the closing valuation report of a Nationally Recognized Firm, addressed to each of the purchase Limited Partners and stating, subject only to Customary Conditions (as defined in Section 4.2A), that (1) the fair market value of the non-cash consideration (other than promissory notes) for which the other Partners are substituting cash does not exceed the amount of cash being so substituted and (2) that the fair market value of any promissory notes being provided by the other Partners equals or exceeds the face principal amount of the notes which were being made by the Proposed Buyer. Any election to substitute cash, non-cash consideration or promissory notes shall be made by those of the other Partners representing the majority of the Participating Percentages of such Offered Stock from such Transferring Party other Partners.
(c) Any closing in respect of the sale of the Interest to be Sold to the Proposed Buyer shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during the 10 day period immediately following the date on which the Election Notice was delivered to the Transferring Party or at such other time and place as specified in the parties bona fide contract. If said sale to a Proposed Buyer is not completed within the time specified in the bona fide contract or the terms of such contract are materially modified, the Selling Partner shall again submit the contract (or any new contract) to the transaction other Partners, and the other Partners shall have all of the rights provided in this Section 9.2; provided, however, that the completion of said sale may agreebe postponed for not more than thirty (30) days if such delay results from causes beyond the control of the Selling Partner or the Proposed Buyer.
(d) If the Selling Partner has agreed to pay any commission or fee to any agent or broker by reason of the sale or proposed sale under this Section 9.2, the Selling Partner shall cause said agent or broker to deliver to the Selling Partner a certification by the agent or broker as to the identity of all parties who will share such commission and the respective amounts to be shared. At A true and correct copy of the certification shall also accompany the copy of the bona fide contract. To the extent that the certification discloses that the broker or agent will share any part of the commission or fee with the Proposed Buyer or any Affiliate thereof, then, if one or more of the other Partners shall elect to purchase the Interest to be Sold as provided in Section 9.2(b), the commission shall be reduced by such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) amount and such other instruments as the Company may reasonably require to consummate the purchase price for the Interest to be Sold as applied in this Section 9.2 between the Selling Partner and the other Partner(s) shall be reduced by such amount. In no event shall the Partnership or the other Partners be required to pay any commission or fees to any broker or agent.
(e) In the event more than one of the other Partners exercises its right to purchase the Interest to be Sold, each shall be deemed to have agreed (unless such Partners agree otherwise) to purchase a part of the Interest to be Sold equal to a fraction thereof, the numerator of which shall be such Partner’s Participating Percentage and the denominator of which shall be the aggregate Participating Percentages of all Partners agreeing to purchase the Interest to be Sold.
(f) In the event that the proposed sale is completed to the Proposed Buyer pursuant to such contract and the terms of this Section 9.2, the Proposed Buyer, upon execution of a counterpart of this Agreement, shall succeed the Selling Partner under the terms and provisions of this Agreement, together with all of the rights, duties and obligations pertaining thereto, including the rights and restrictions contained in this Section 9.2 with respect to further sales; provided, however, that no party shall become such a substitute partner if there has been any change in the identity of the proposed substitute partner from that of the Proposed Buyer, or any substantial change in the terms and conditions of the bona fide contract of sale, unless approved by the Partners or unless the other Partners have elected not to purchase the Interest to be sold pursuant to the submission of such Offered Stock, changed terms pursuant to Section 9.2(d).
(yg) the Company The terms of this Section 9.2 shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds not apply to a bank account Transfer made by Bally Limited or bank accounts designated its Affiliates in respect of which Bally Limited exercises its rights under Section 9.3B.
(h) In the case of a Transfer by Bally General of its interest in the Transferring Party Partnership, such Transfer shall be made contemporaneous with the disposition by its Affiliates of not less than 80% of their respective interest in writing to the Company at least two days prior to such closingPartnership.
Appears in 1 contract
Sources: Limited Partnership Agreement (New Gaming Capital Partnership)
Permitted Transfer. Notwithstanding the foregoing provisions of this Article IX, a one time sale (and in the case of an IPO, a transaction or series of related transactions occurring on or about the same day in connection with the IPO), conveyance or Transfer of the Property in its entirety (hereinafter, “Sale”) shall be permitted hereunder provided that each of the following terms and conditions are satisfied:
(a) no Event of Default is then continuing hereunder or under any of the other Loan Documents;
(b) If the proposed Sale is to occur at any time after a Securitization, each Rating Agency shall have delivered written confirmation that any rating issued by such Rating Agency in connection with the Securitization will not, as a result of the proposed Sale, be downgraded from the then current ratings thereof, qualified or withdrawn; provided, however, no such confirmation shall be required to be obtained from the Rating Agencies in the event the IPO results in the outstanding principal amount of the Loan and the Mezz Loan, collectively, being reduced by $150,000 or more and, provided, further, that, prior to January 1, 2006, no Sale (other than in connection with an IPO) will be permitted if the Sale is to occur within sixty (60) days of any contemplated sale of the Loan by Lender, whether in connection with a Securitization or otherwise;
(c) Borrower gives Lender written notice of the terms of the proposed Sale not less than sixty (60) days or with respect to an IPO, fifteen (15) days, before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender (i) If all such information concerning the Company does not elect proposed transferee of the Property (hereinafter, “Buyer”) as Lender would require in evaluating an initial extension of credit to irrevocably commit a borrower and Lender determines, in its sole discretion that the Buyer is acceptable to purchase Lender in all respects (other than in connection with an IPO) and (ii) a non-refundable application fee equal to $15,000;
(d) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to one percent (1%) of the then outstanding Loan Amount together with all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by Lender in connection with the Sale; provided, however, that no such assumption fee shall be required in connection with a Transfer effected in connection with an IPO (but Borrower shall be required to pay all out-of-pocket costs and expenses of Lender);
(e) In the event the applicable Transfer will result in Borrower no longer owning the Property, Buyer assumes all of the Offered Stock obligations under the Loan Documents and, prior to or concurrently with the expiration closing of such Sale, Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may require;
(f) In the event the applicable Transfer will result in Borrower no longer owning the Property, Borrower and Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(g) In the event the applicable Transfer will result in Borrower no longer owning the Property, Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender’s title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Election Period as set forth Sale, all in Section 1.4(b)form and substance reasonably satisfactory to Lender, then including, without limitation, an endorsement or endorsements to Lender’s title insurance policy insuring the Transferring Party may Transfer alllien of this Security Instrument, but not less than allextending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the Offered Stock assumption agreement referenced above in subparagraph (e) of this Section, with no additional exceptions added to any Person at a price no less than the Offering Price such policy, and on terms and conditions no more favorable insuring that fee simple title to the transferee than those specified Property is vested in Buyer;
(h) In the Offering Notice for event the applicable Transfer will result in Borrower no longer owning the Property, Borrower executes and delivers to Lender, without any cost or expense to Lender, a period release of up Lender, its officers, directors, employees and agents, from all claims and liability relating to thirty-five (35) days from the expiration transactions evidenced by the Loan Documents, through and including the date of the Election Period includingclosing of the Sale, if such Class A Ordinary Shares are at such time Registrable Securitieswhich agreement shall be in form and substance satisfactory to Lender and shall be binding upon Buyer;
(i) In the event the applicable Transfer will result in Borrower no longer owning the Property, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject to the provisions of this Section 1.418.32 hereof, such Sale does not relieve Borrower of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and Borrower executes, without any Offered Stock cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability;
(j) In the event the applicable Transfer will result in Borrower no longer owning the Property, such Sale does not so Transferred within such period shall continue to be subject to the provisions relieve any Guarantor of this Section 1.4 its obligations under any guaranty or indemnity agreement executed in connection with the Loan and each such Guarantor executes, without any subsequent proposed Transfer.
(ii) If cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the Company elects to purchase all ratification of each such guaranty agreement, provided that if Buyer or a party associated with Buyer approved by Lender in its sole discretion assumes the obligations of the Offered Stockcurrent Guarantor under its guaranty and Buyer or such party associated with Buyer, as applicable, executes, without any cost or expense to Lender, a new guaranty in similar form and substance to the existing guaranty and otherwise satisfactory to Lender, then Lender shall release the current Guarantor from all obligations arising under its guaranty after the closing of such Sale; and
(k) In the purchase of such Offered Stock event the applicable Transfer will result in Borrower no longer owning the Property, Buyer is a Single Purpose Entity and Lender receives a non-consolidation opinion relating to Buyer from such Transferring Party shall be held at the offices of CadwaladerBuyer’s counsel, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during the 10 day period immediately following the date on which the Election Notice was delivered opinion is in form and substance acceptable to the Transferring Party or at such other time and place as the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase of such Offered Stock, (y) the Company shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at least two days prior to such closingLender.
Appears in 1 contract
Sources: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Morgans Hotel Group Co.)
Permitted Transfer. Notwithstanding the foregoing provisions of this Article IX, Lender shall consent to a sale, conveyance or transfer of the Property in its entirety or all of the membership interest in Borrower or Member (hereinafter, a "Sale") to any person or entity provided that, for each Sale, each of the following terms and conditions are satisfied:
(a) No Default and no Event of Default is then continuing hereunder or under any of the other Loan Documents;
(b) If the proposed Sale is to occur at any time after a Securitization, each Rating Agency shall have delivered written confirmation that any rating issued by such Rating Agency in connection with the Securitization will not, as a result of the proposed Sale, be downgraded from the then current ratings thereof, qualified or withdrawn; provided, however, that no request for consent to the Sale will be entertained by ▇▇▇▇▇▇ if the proposed Sale is to occur within sixty (60) days of any contemplated sale of the Loan by Lender, whether in connection with a Securitization or otherwise
(c) Borrower gives Lender written notice of the terms of the proposed Sale not less than sixty (60) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender (i) If all such information concerning the Company does not elect to irrevocably commit to purchase all proposed transferee of the Offered Stock prior Property (hereinafter, "Buyer") as Lender would require in evaluating an initial extension of credit to the expiration of the Election Period as set forth in Section 1.4(b), then the Transferring Party may Transfer all, but not less than all, of the Offered Stock to any Person at a price no less than the Offering Price borrower and on terms and conditions no more favorable to the transferee than those specified in the Offering Notice for a period of up to thirty-five (35) days from the expiration of the Election Period including, if such Class A Ordinary Shares are at such time Registrable Securities, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject to the provisions of this Section 1.4, and any Offered Stock not so Transferred within such period shall continue to be subject to the provisions of this Section 1.4 in connection with any subsequent proposed Transfer.
(ii) If a non-refundable application fee equal to $7,500, which fee shall be deducted from the Company elects costs payable pursuant to purchase all subsection (d) below upon the consummation of such Sale;
(d) Lender shall have the right to approve or disapprove the proposed transfer and the proposed Buyer based on its then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the Offered Stock, then the closing of the purchase of such Offered Stock from such Transferring Party shall be held at the offices of Cadwaladerproposed transfer, ▇▇▇▇▇▇ may consider the experience and track record of Buyer and its principals in owning and operating facilities similar to the Property, the financial strength of Buyer and its principals, the general business standing of Buyer and its principals and Buyer's and its principals' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(e) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to one percent (1%) of the then outstanding Loan Amount, together with all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by Lender in connection with the Sale;
(f) Buyer assumes all of the obligations under the Loan Documents and, prior to or concurrently with the closing of such Sale, Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may require;
(g) Borrower and Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by ▇▇▇▇▇▇;
(h) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all in form and substance satisfactory to Lender, including, without limitation, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Security Instrument, extending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the assumption agreement referenced above in subparagraph (e) of this Section, with no additional exceptions added to such policy, and insuring that fee simple title to the Property is vested in Buyer;
(i) Borrower executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the Loan Documents, through and including the date of the closing of the Sale, which agreement shall be in form and substance satisfactory to Lender and shall be binding upon Buyer;
(j) subject to the provisions of Section 18.32 hereof, such Sale is not construed so as to relieve Borrower of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and Borrower executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability;
(k) such Sale is not construed so as to relieve any Guarantor of its obligations under any guaranty or indemnity agreement executed in connection with the Loan and each such Guarantor executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of each such guaranty agreement, provided that if Buyer or a party associated with Buyer approved by Lender in its sole discretion assumes the obligations of the current Guarantor under its guaranty and Buyer or such party associated with Buyer, as applicable, executes, without any cost or expense to Lender, a new guaranty in similar form and substance to the existing guaranty and otherwise satisfactory to Lender, then Lender shall release the current Guarantor from all obligations arising under its guaranty after the closing of such Sale;
(l) in the case of a Sale of the Property, Buyer is a Single Purpose Entity; and
(m) ▇▇▇▇▇▇ & receives a non-consolidation opinion relating to ▇▇▇▇▇ LLPfrom ▇▇▇▇▇'s counsel, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during the 10 day period immediately following the date on which the Election Notice was delivered opinion is in form and substance acceptable to the Transferring Party or at such other time and place as the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase of such Offered Stock, (y) the Company shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at least two days prior to such closingLender.
Appears in 1 contract
Sources: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Parkway Properties Inc)
Permitted Transfer. Notwithstanding the foregoing provisions of this Article IX, a sale, conveyance or transfer of the Property in its entirety (hereinafter, “Sale”) shall be permitted hereunder provided that each of the following terms and conditions are satisfied:
(a) no Event of Default is then continuing hereunder or under any of the other Loan Documents;
(b) Lender shall have, in its reasonable discretion, consented to the Sale, and, if the proposed Sale is to occur at any time after a Securitization, each Rating Agency shall have delivered written confirmation that any rating issued by such Rating Agency in connection with the Securitization will not, as a result of the proposed Sale, be downgraded from the then current ratings thereof, qualified or withdrawn; provided, however, that no request for consent to the Sale will be entertained by Lender if the proposed Sale is to occur within sixty (60) days of any contemplated sale of the Loan by Lender, whether in connection with a Securitization or otherwise;
(c) Borrower gives Lender written notice of the terms of the proposed Sale not less than sixty (60) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender (i) If all such information concerning the Company does not elect proposed transferee of the Property (hereinafter, “Buyer”) as Lender would require in evaluating an initial extension of credit to irrevocably commit a borrower and Lender determines, in its sole discretion that the Buyer is acceptable to purchase Lender in all respects and (ii) a non-refundable application fee equal to $7,500;
(d) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to one-half of one percent (.5%) of the then outstanding Loan Amount together with all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by Lender in connection with the Sale;
(e) Buyer assumes all of the Offered Stock obligations under the Loan Documents and, prior to or concurrently with the expiration closing of such Sale, Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may require;
(f) Borrower and Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(g) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender’s title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Election Period as set forth Sale, all in Section 1.4(b)form and substance satisfactory to Lender, then including, without limitation, an endorsement or endorsements to Lender’s title insurance policy insuring the Transferring Party may Transfer alllien of this Security Instrument, but not less than allextending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the Offered Stock assumption agreement referenced above in subparagraph (e) of this Section, with no additional exceptions added to any Person at a price no less than the Offering Price such policy, and on terms and conditions no more favorable insuring that leasehold title to the transferee than those specified Property is vested in the Offering Notice for Buyer;
(h) Borrower executes and delivers to Lender, without any cost or expense to Lender, a period release of up to thirty-five (35) days Lender, its officers, directors, employees and agents, from the expiration of the Election Period including, if such Class A Ordinary Shares are at such time Registrable Securities, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject all claims and liability relating to the provisions transactions evidenced by the Loan Documents, through and including the date of this Section 1.4, and any Offered Stock not so Transferred within such period shall continue to be subject to the provisions of this Section 1.4 in connection with any subsequent proposed Transfer.
(ii) If the Company elects to purchase all of the Offered Stock, then the closing of the purchase of such Offered Stock from such Transferring Party Sale, which agreement shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New York, or at such other location as in form and substance satisfactory to Lender and shall be mutually agreed, at a mutually agreed binding upon time on a mutually agreed upon Business Day during the 10 day period immediately following the date on which the Election Notice was delivered to the Transferring Party or at such other time and place as the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase of such Offered Stock, (y) the Company shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at least two days prior to such closing.Buyer;
Appears in 1 contract
Sources: Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing (Pebblebrook Hotel Trust)
Permitted Transfer. Notwithstanding the provisions of Section 8.1 hereof, provided that no Default or Event of Default shall have occurred and remain uncured, Lender’s consent shall not be required in connection with one or a series of Transfers, of up to forty-nine percent (i49%) If the Company does not elect to irrevocably commit to purchase all of the Offered Stock stock, the limited partnership interests or non-managing membership interests (as the case may be) in any Restricted Party (other than Guarantor); provided, however, no such Transfer shall result in the change of Control in a Restricted Party (other than Guarantor), and as a condition to each such Transfer, Lender shall receive not less than thirty (30) days prior to the expiration notice of such proposed Transfer and copies of the Election Period as documents transferring such interest and, if requested by Lender, evidence that the organizational structure of Borrower and each SPC Party remains in compliance with the covenants set forth in Section 1.4(b)3.1.24 hereof and the requirements of the Rating Agencies. If after giving effect to any such Transfer, then more than forty-nine percent (49%) in the Transferring aggregate of direct or indirect interests in a Restricted Party may Transfer all, but not (other than Guarantor) are owned by any Person and its Affiliates that owned less than all, forty-nine percent (49%) direct or indirect interest in such Restricted Party as of the Offered Stock to any Person at a price Closing Date, Borrower shall, no less than the Offering Price and on terms and conditions no more favorable thirty (30) days prior to the transferee than those specified in effective date of any such Transfer, deliver to Lender an Additional Insolvency Opinion acceptable to Lender and the Offering Notice for a period of up to thirty-five (35) days from the expiration of the Election Period includingRating Agencies. In addition, if such Class A Ordinary Shares are at such time Registrable Securitiesall times, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject to the provisions of this Section 1.4, and any Offered Stock not so Transferred within such period shall Guarantor must continue to be subject to the provisions of this Section 1.4 Control Borrower, Mortgage Borrower, Principal, Guarantor and Affiliate Manager and own, directly or indirectly, at least a 50% legal and beneficial interest in Borrower, Mortgage Borrower, Principal and Affiliate Manager. All reasonable costs and expenses incurred by Lender in connection with any subsequent proposed Transfer.
the foregoing shall be payable by Borrower. Notwithstanding anything contained in this Section 8.2 to the contrary, a Sale or Pledge (ii) If other than the Company elects to purchase all pledge of the Offered Stock, then the closing Collateral pursuant to this Agreement) or issuance of the purchase of such Offered Stock from such Transferring Party any direct ownership interests in Mortgage Borrower shall not be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during the 10 day period immediately following the date on which the Election Notice was delivered to the Transferring Party or at such other time and place as the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase of such Offered Stock, (y) the Company shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at least two days prior to such closingpermitted.
Appears in 1 contract
Permitted Transfer. Notwithstanding the foregoing provisions of this Article IX, a sale, conveyance or transfer of the Property in its entirety (hereinafter, “Sale”) shall be permitted hereunder provided that each of the following terms and conditions are satisfied:
(a) no Event of Default is then continuing hereunder or under any of the other Loan Documents;
(b) Lender shall have, in its reasonable discretion, consented to the Sale, and, if the proposed Sale is to occur at any time after a Securitization, each Rating Agency shall have delivered written confirmation that any rating issued by such Rating Agency in connection with the Securitization will not, as a result of the proposed Sale, be downgraded from the then current ratings thereof, qualified or withdrawn; provided, however, that no request for consent to the Sale will be entertained by Lender if the proposed Sale is to occur within sixty (60) days of any contemplated sale of the Loan by Lender, whether in connection with a Securitization or otherwise;
(c) Borrower gives Lender written notice of the terms of the proposed Sale not less than sixty (60) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender (i) If all such information concerning the Company does not elect proposed transferee of the Property (hereinafter, “Buyer”) as Lender would require in evaluating an initial extension of credit to irrevocably commit a borrower and Lender determines, in its sole discretion that the Buyer is acceptable to purchase Lender in all respects and (ii) a non-refundable application fee equal to $7,500;
(d) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to one-half of one percent (.5%) of the then outstanding Loan Amount together with all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by Lender in connection with the Sale;
(e) Buyer assumes all of the Offered Stock obligations under the Loan Documents and, prior to or concurrently with the expiration closing of such Sale, Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may require;
(f) Borrower and Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by Lender;
(g) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender’s title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Election Period as set forth Sale, all in Section 1.4(b)form and substance satisfactory to Lender, then including, without limitation, an endorsement or endorsements to Lender’s title insurance policy insuring the Transferring Party may Transfer alllien of this Security Instrument, but not less than allextending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the Offered Stock assumption agreement referenced above in subparagraph (e) of this Section, with no additional exceptions added to any Person at a price no less than the Offering Price such policy, and on terms and conditions no more favorable insuring that leasehold title to the transferee than those specified Property is vested in Buyer;
(h) Borrower executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the Offering Notice for a period of up to thirty-five (35) days from transactions evidenced by the expiration Loan Documents, through and including the date of the Election Period includingclosing of the Sale, if such Class A Ordinary Shares are at such time Registrable Securities, pursuant which agreement shall be in form and substance satisfactory to Article II. The Offered Stock so Transferred to any Person within such period Lender and shall cease to be binding upon Buyer;
(i) subject to the provisions of this Section 1.418.32 hereof, such Sale is not construed so as to relieve Borrower of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and Borrower executes, without any Offered Stock cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability;
(j) such Sale is not construed so Transferred within such period shall continue as to be subject to the provisions relieve any Guarantor of this Section 1.4 its obligations under any guaranty or indemnity agreement executed in connection with the Loan and each such Guarantor executes, without any subsequent proposed Transfer.
(ii) If cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the Company elects to purchase all ratification of each such guaranty agreement, provided that if Buyer or a party associated with Buyer approved by Lender in its sole discretion assumes the obligations of the Offered Stockcurrent Guarantor under its guaranty and Buyer or such party associated with Buyer, as applicable, executes, without any cost or expense to Lender, a new guaranty in similar form and substance to the existing guaranty and otherwise satisfactory to Lender, then Lender shall release the current Guarantor from all obligations arising under its guaranty after the closing of the purchase of such Offered Stock Sale; and
(k) Buyer is a Single Purpose Entity and Lender receives a non-consolidation opinion relating to Buyer from such Transferring Party shall be held at the offices of CadwaladerBuyer’s counsel, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during the 10 day period immediately following the date on which the Election Notice was delivered opinion is in form and substance reasonably acceptable to the Transferring Party or at such other time and place as the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase of such Offered Stock, (y) the Company shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at least two days prior to such closingLender.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing (Pebblebrook Hotel Trust)
Permitted Transfer. (i) If Notwithstanding the Company does not elect to irrevocably commit to purchase all foregoing provisions of this Article IX, a sale, conveyance or transfer of the Offered Stock prior to the expiration Property in its entirety (hereinafter, “Sale”) shall be permitted hereunder provided that each of the Election Period as set forth in Section 1.4(b), then the Transferring Party may Transfer all, but not less than all, of the Offered Stock to any Person at a price no less than the Offering Price and on following terms and conditions are satisfied:
(a) no more favorable Event of Default is then continuing hereunder or under any of the other Loan Documents;
(b) Lender shall have, in its sole and absolute discretion, consented to the transferee than those specified in the Offering Notice for a period of up to thirty-five (35) days from the expiration of the Election Period includingSale, and, if the proposed Sale is to occur at any time after a Securitization, each Rating Agency shall have delivered written confirmation that any rating issued by such Class A Ordinary Shares are at such time Registrable Securities, pursuant to Article II. The Offered Stock so Transferred to any Person within such period shall cease to be subject to the provisions of this Section 1.4, and any Offered Stock not so Transferred within such period shall continue to be subject to the provisions of this Section 1.4 Rating Agency in connection with the Securitization will not, as a result of the proposed Sale, be downgraded from the then current ratings thereof, qualified or withdrawn; provided, however, that no request for consent to the Sale will be entertained by Lender if the proposed Sale is to occur within sixty (60) days of any subsequent proposed Transfer.contemplated sale of the Loan by ▇▇▇▇▇▇, whether in connection with a Securitization or otherwise; and provided, further, that ▇▇▇▇▇▇’s consent shall not be required with respect to the first Sale which is to a Qualified Transferee;
(iic) If the Company elects to purchase all of the Offered Stock, then the closing of the purchase of such Offered Stock from such Transferring Party shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & gives ▇▇▇▇▇▇ LLP, One World Financial Center, New York, New York, or at such other location as shall be mutually agreed, at a mutually agreed upon time on a mutually agreed upon Business Day during written notice of the 10 day period immediately following terms of the proposed Sale not less than thirty (30) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender (i) all such information concerning the Election Notice was delivered proposed transferee of the Property (hereinafter, “Buyer”) as Lender would require in evaluating an initial extension of credit to a borrower and Lender determines, in its sole discretion that the Transferring Party or at such other time Buyer is acceptable to Lender in all respects and place as (ii) a non-refundable application fee equal to $7,500;
(d) Borrower pays Lender, concurrently with the parties to the transaction may agree. At such closing, (x) the Transferring Party will deliver stock certificates evidencing the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase closing of such Offered StockSale, (y) the Company shall deliver a non-refundable assumption fee in an amount equal to one half of one percent (.5%) of the product of (1) then outstanding Loan Amount, provided, however, that such assumption fee shall be waived with respect to the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds first Sale which is to a bank account Qualified Transferee, together with all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by Lender in connection with the Sale;
(e) Buyer assumes all of the obligations under the Loan Documents and, prior to or bank accounts designated concurrently with the closing of such Sale, Buyer executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Lender may require;
(f) Borrower and Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments and any additional documents reasonably requested by ▇▇▇▇▇▇;
(g) ▇▇▇▇▇▇▇▇ delivers to Lender, without any cost or expense to Lender, such endorsements to the Title Policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the time of the Sale, all in form and substance satisfactory to Lender, including, without limitation, an endorsement or endorsements to the Title Policy, extending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the assumption agreement referenced above in subparagraph (e) of this Section, with no additional exceptions added to such policy, and insuring that fee simple title to the Property is vested in Buyer;
(h) Borrower executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the Transferring Party Loan Documents, through and including the date of the closing of the Sale, which agreement shall be in writing form and substance satisfactory to Lender and shall be binding upon Buyer;
(i) subject to the Company at least two days provisions of Section 18.32 hereof, such Sale is not construed so as to relieve Borrower of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such closingSale, and Borrower executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability;
(j) such Sale is not construed so as to relieve any Guarantor of its obligations under any guaranty or indemnity agreement executed in connection with the Loan and each such Guarantor executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of each such guaranty agreement, provided that if Buyer or a party associated with Buyer approved by Lender in its sole discretion assumes the obligations of the current Guarantor under its guaranty and Buyer or such party associated with Buyer, as applicable, executes, without any cost or expense to Lender, a new guaranty in similar form and substance to the existing guaranty and otherwise satisfactory to Lender, then Lender shall release the current Guarantor from all obligations arising under its guaranty after the closing of such Sale; and
(k) Buyer is a Single Purpose Entity and ▇▇▇▇▇▇ receives a non-consolidation opinion relating to ▇▇▇▇▇ from Buyer’s counsel, which opinion is in form and substance acceptable to Lender.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing (Maguire Properties Inc)