Total Assumption. Notwithstanding the foregoing provisions of this Article 6, at any time other than the sixty (60) days prior to and following any Secondary Market Transaction, Lender shall not unreasonably withhold, condition or delay consent to a one-time transfer of the Property in its entirety to, and the related assumptions of the Loan by, any Person (a “Transferee”) provided that each of the following terms and conditions are satisfied: (i) no Event of Default has occurred; (ii) Borrower shall have (A) delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require and (B) paid to Lender a non-refundable processing fee in the amount of $5,000. Lender shall have the right to approve or disapprove the proposed transfer 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 (it being acknowledged that Lender may withhold its consent to a Transfer contemplated by this Section 6.4 (and shall not be deemed to be acting unreasonably) in the event that the proposed Transferee or any Constituent Owner of the proposed Transferee that (together with its affiliates) Controls and/or owns more than a 49% direct and/or indirect interest in the Transferee shall: (i) hold a tenancy-in-common interest in the Property after giving effect to the applicable Transfer, (ii) be a statutory trust that is subject to limitations on its behavior pursuant to applicable Legal Requirements related to the tax code and/or (iii) be a “crowdfunded entity” that is funded primarily (A) in reliance upon Regulation Crowdfunding promulgated by the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended and/or (B) though internet-mediated registries, platforms or similar portals, mail-order subscriptions, benefit events and/or other similar methods). In determining whether to give or withhold its approval of the proposed transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Property, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; (iii) Borrower shall have paid to Lender, concurrently with the closing of such prospective transfer, (A) a non-refundable assumption fee in an amount equal to one percent (1%) of the then outstanding principal balance of the Loan, (B) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (C) all fees, costs and expenses of all third parties and the Rating Agencies incurred in connection therewith; (iv) Transferee assumes and agrees to pay the Debt as and when due subject to the provisions of Article 13 hereof and, prior to or concurrently with the closing of such transfer, Transferee and its constituent partners, members, shareholders, Affiliates or sponsors as Lender may require, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and an Affiliate of Transferee reasonably acceptable to Lender (but in all events able to satisfy the net worth, liquidity and other similar covenants in the Guaranty (unless otherwise agreed to by Lender)) shall execute a recourse guaranty and an environmental indemnity in form and substance identical to the Guaranty and Environmental Indemnity, respectively, with such changes to each of the foregoing as may be reasonably required by Lender; (v) Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender; (vi) Borrower shall have delivered to Lender, without any cost or expense to Lender, such endorsements to Lender’s Title Insurance Policy insuring that fee simple or leasehold title to the Property, as applicable, is vested in Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender; (vii) Transferee shall have furnished to Lender all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 5 hereof; (viii) Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of the Assignment of Management Agreement and Section 4.15 hereof and assign to Lender as additional security such new management agreement; (ix) Transferee shall furnish to Lender a REMIC Opinion, a New Non- Consolidation Opinion and an additional opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing and (D) with respect to such other matters as Lender may reasonably request; (x) if required by Lender, Lender shall have received (A) a Rating Agency Confirmation with respect to such transfer and (B) evidence that (I) the proposed transfer (1) is permitted pursuant to the Property Documents and (2) will not result in a Property Document Event and (II) after giving effect to the applicable transfer, the Property will be operated, “flagged” and branded pursuant to a Qualified Franchise Agreement with a Qualified Franchisor in accordance with the applicable terms and conditions hereof; and (xi) Borrower’s obligations under the contract of sale pursuant to which the transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 6.4.
Appears in 1 contract
Sources: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust III, Inc.)
Total Assumption. Notwithstanding the foregoing provisions of this Article 6, at any time other than the sixty (60) days prior to and following any Secondary Market Transaction, Lender shall not unreasonably withhold, condition or delay withhold consent to a one-time transfer of the Property in its entirety toto (or one hundred percent (100%) of the direct or indirect legal or beneficial interests therein or in each Borrower and each SPE Component Entity), and the related assumptions assumption of the Loan by, any Person (a “Transferee”) provided that each of the following terms and conditions are satisfied:
(i) no Event of Default has occurred and is continuing and the Anticipated Repayment Date shall not have occurred;
(ii) Borrower shall have (A) delivered written notice to Lender of the terms of such prospective transfer not less than forty-five sixty (4560) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require and (B) paid to Lender a non-refundable processing fee in the amount of $5,00025,000. Unless a Qualified Transferee owns more than fifty-one percent of the direct or indirect equity ownership in such Transferee and Controls Transferee and will control the day-to-day operations of the Properties, Lender shall have the right to approve or disapprove the proposed transfer 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 (it being acknowledged that Lender may withhold its consent to withheld, conditioned or delayed. Unless a Transfer contemplated by this Section 6.4 (and shall not be deemed to be acting unreasonably) in the event that the proposed Qualified Transferee or any Constituent Owner of the proposed Transferee that (together with its affiliates) Controls and/or owns more than a 49% fifty-one percent (51%) of the direct and/or or indirect equity ownership interest in such Transferee and Controls Transferee and will control the Transferee shall: (i) hold a tenancyday-into-common interest day operations of the Properties, in the Property after giving effect to the applicable Transfer, (ii) be a statutory trust that is subject to limitations on its behavior pursuant to applicable Legal Requirements related to the tax code and/or (iii) be a “crowdfunded entity” that is funded primarily (A) in reliance upon Regulation Crowdfunding promulgated by the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended and/or (B) though internet-mediated registries, platforms or similar portals, mail-order subscriptions, benefit events and/or other similar methods). In determining whether to give or withhold its approval of the proposed transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertyProperties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower shall have paid to Lender, concurrently with the closing of such prospective transfer, (A) a non-refundable assumption fee in an amount equal to one percent (1%) of the then outstanding principal balance of the Loan$250,000, (B) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (C) all fees, costs and expenses of all third parties and the Rating Agencies incurred in connection therewith;
(iv) Transferee assumes (or, in the case of a sale of all of the ownership interests in Borrower, ratifies) and agrees to pay the Debt as and when due subject to the provisions of Article 13 hereof and, prior to or concurrently with the closing of such transfer, Transferee and its constituent partners, members, shareholders, Affiliates or sponsors as Lender may require, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and an Affiliate of a Qualified Transferee reasonably acceptable to Lender (but in all events able to satisfy the net worth, liquidity and other similar covenants in the Guaranty (unless otherwise agreed to by Lender)) shall execute a recourse guaranty and an environmental indemnity in form and substance identical to the Guaranty and Environmental Indemnity, respectivelyincluding, without limitation, the net worth covenants thereunder. In connection with such changes transfer, Lender shall release the existing Borrower (to each the extent such Transferee is assuming all of the foregoing obligations of Borrower under the Loan Documents) and any Guarantor which is being replaced pursuant to this Section 6.3 from the obligations under the Loan Documents and the Guaranty, as may be reasonably required applicable, arising from and after the consummation of the transfer pursuant to this Section 6.3, other than obligations which expressly survive and other than liabilities caused by LenderBorrower, Guarantor and/or their respective Affiliates;
(v) Borrower and Transferee, without any cost to Lender, shall furnish any information reasonably requested by Lender L▇▇▇▇▇ for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by LenderL▇▇▇▇▇;
(vi) Borrower shall have delivered to Lender, without any cost or expense to Lender, such endorsements to Lender’s Title Insurance Policy insuring that fee simple or leasehold title to the Property, as applicable, is vested in Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(vii) Transferee shall have furnished to Lender all appropriate papers evidencing Transferee’s and Qualified Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee, Qualified Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 5 hereof;
(viii) if Management Agreement is in effect as of the closing of such transfer pursuant to this Section 6.4, Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of the Assignment of Management Agreement and Section 4.15 hereof and assign to Lender as additional security such new management agreement;
(ix) Transferee shall furnish to Lender a REMIC Opinion, a New Non- Non-Consolidation Opinion and an additional opinion of counsel reasonably satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, subject to customary qualifications, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing and (D) with respect to such other matters as Lender may reasonably request;
(x) if required by LenderL▇▇▇▇▇, Lender shall have received (A) a Rating Agency Confirmation with respect to such transfer and (B) evidence that (I) the proposed transfer (1) is permitted pursuant to the Property Documents and (2) will not result in a Property Document Event or violate any Lease;
(xi) Lender shall have received customary “know your client” searches (in form, scope and (IIsubstance and from a provider, in each case, reasonably acceptable to Lender) after giving effect with respect to the applicable transferPerson holdings a 10% or greater direct or indirect interest in Transferee, the Property will be operatedQualified Transferee, “flagged” and branded pursuant to a Qualified Franchise Agreement with a Qualified Franchisor in accordance with the applicable terms and conditions hereof; Borrower and/or any SPE Component Entity and
(xixii) Borrower’s obligations under the contract of sale pursuant to which the transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 6.4.
Appears in 1 contract
Sources: Loan Agreement (Istar Inc.)
Total Assumption. Notwithstanding the foregoing provisions of this Article 6, at any time other than the sixty (60) days prior to and following any Secondary Market Transaction, Lender shall not unreasonably withhold, condition or delay withhold consent to a one-time transfer of the Property in its entirety toto (or one hundred percent (100%) of the direct or indirect legal or beneficial interests therein or in each Borrower and each SPE Component Entity), and the related assumptions assumption of the Loan by, any Person (a “Transferee”) provided that each of the following terms and conditions are satisfied:
(i) no Event of Default has occurred and is continuing and the Anticipated Repayment Date shall not have occurred;
(ii) Borrower shall have (A) delivered written notice to Lender of the terms of such prospective transfer not less than forty-five sixty (4560) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require and (B) paid to Lender a non-refundable processing fee in the amount of $5,00025,000. Unless a Qualified Transferee owns more than fifty-one percent of the direct or indirect equity ownership in such Transferee and Controls Transferee and will control the day-to-day operations of the Properties, Lender shall have the right to approve or disapprove the proposed transfer 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 (it being acknowledged that Lender may withhold its consent to withheld, conditioned or delayed. Unless a Transfer contemplated by this Section 6.4 (and shall not be deemed to be acting unreasonably) in the event that the proposed Qualified Transferee or any Constituent Owner of the proposed Transferee that (together with its affiliates) Controls and/or owns more than a 49% fifty-one percent (51%) of the direct and/or or indirect equity ownership interest in such Transferee and Controls Transferee and will control the Transferee shall: (i) hold a tenancyday-into-common interest day operations of the Properties, in the Property after giving effect to the applicable Transfer, (ii) be a statutory trust that is subject to limitations on its behavior pursuant to applicable Legal Requirements related to the tax code and/or (iii) be a “crowdfunded entity” that is funded primarily (A) in reliance upon Regulation Crowdfunding promulgated by the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended and/or (B) though internet-mediated registries, platforms or similar portals, mail-order subscriptions, benefit events and/or other similar methods). In determining whether to give or withhold its approval of the proposed transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the PropertyProperties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;
(iii) Borrower shall have paid to Lender, concurrently with the closing of such prospective transfer, (A) a non-refundable assumption fee in an amount equal to one percent (1%) of the then outstanding principal balance of the Loan$250,000, (B) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection therewith and (C) all fees, costs and expenses of all third parties and the Rating Agencies incurred in connection therewith;
(iv) Transferee assumes (or, in the case of a sale of all of the ownership interests in Borrower, ratifies) and agrees to pay the Debt as and when due subject to the provisions of Article 13 hereof and, prior to or concurrently with the closing of such transfer, Transferee and its constituent partners, members, shareholders, Affiliates or sponsors as Lender may require, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and an Affiliate of a Qualified Transferee reasonably acceptable to Lender (but in all events able to satisfy the net worth, liquidity and other similar covenants in the Guaranty (unless otherwise agreed to by Lender)) shall execute a recourse guaranty and an environmental indemnity in form and substance identical to the Guaranty and Environmental Indemnity, respectivelyincluding, without limitation, the net worth covenants thereunder. In connection with such changes transfer, Lender shall release the existing Borrower (to each the extent such Transferee is assuming all of the foregoing obligations of Borrower under the Loan Documents) and any Guarantor which is being replaced pursuant to this Section 6.3 from the obligations under the Loan Documents and the Guaranty, as may be reasonably required applicable, arising from and after the consummation of the transfer pursuant to this Section 6.3, other than obligations which expressly survive and other than liabilities caused by LenderBorrower, Guarantor and/or their respective Affiliates;
(v) Borrower and Transferee, without any cost to Lender, shall furnish any information reasonably requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(vi) Borrower shall have delivered to Lender, without any cost or expense to Lender, such endorsements to Lender’s Title Insurance Policy insuring that fee simple or leasehold title to the Property, as applicable, is vested in Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(vii) Transferee shall have furnished to Lender all appropriate papers evidencing Transferee’s and Qualified Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee, Qualified Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 5 hereof;
(viii) if Management Agreement is in effect as of the closing of such transfer pursuant to this Section 6.4, Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of the Assignment of Management Agreement and Section 4.15 hereof and assign to Lender as additional security such new management agreement;
(ix) Transferee shall furnish to Lender a REMIC Opinion, a New Non- Non-Consolidation Opinion and an additional opinion of counsel reasonably satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, subject to customary qualifications, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing and (D) with respect to such other matters as Lender may reasonably request;
(x) if required by Lender, Lender shall have received (A) a Rating Agency Confirmation with respect to such transfer and (B) evidence that (I) the proposed transfer (1) is permitted pursuant to the Property Documents and (2) will not result in a Property Document Event or violate any Lease;
(xi) Lender shall have received customary “know your client” searches (in form, scope and (IIsubstance and from a provider, in each case, reasonably acceptable to Lender) after giving effect with respect to the applicable transferPerson holdings a 10% or greater direct or indirect interest in Transferee, the Property will be operatedQualified Transferee, “flagged” and branded pursuant to a Qualified Franchise Agreement with a Qualified Franchisor in accordance with the applicable terms and conditions hereof; Borrower and/or any SPE Component Entity and
(xixii) Borrower’s obligations under the contract of sale pursuant to which the transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 6.4.
Appears in 1 contract